Marian Walker v Brian Bridgewood & Ors (No 2) [2006] NSWSC 284

New South Wales Supreme Court

CITATION : Marian Walker v Brian Bridgewood & Ors (No 2) [2006] NSWSC 284

HEARING DATE(S) : 11/04/06 JUDGMENT OF : Gzell J

EX TEMPORE JUDGMENT DATE : 04/11/2006

DECISION : No order as to costs.

CATCHWORDS : PROCEDURE - Costs - Plaintiff successful in having right of way extinguished - Whether costs should follow the event and defendants, unsuccessful in protecting their rights, should pay the plaintiff's costs - Whether objection an incident of an application to extinguish a right of way - Whether partially successful plaintiff should pay the costs of unsuccessful defendants - Whether there should be no order as to costs where plaintiff is wholly successful - Effect of a Calderbank offer made by the plaintiff on the second day of trial

LEGISLATION CITED : Conveyancing Act 1919 (NSW) Property Law Act 1958 (Vic)

Re Rose Bay Bowling & Recreational Club Ltd (1935) 52 WN (NSW) 77 Durian (Holdings) Pty Ltd v Cavacourt Pty Ltd [2000] NSWCA 28 CASES CITED : Re Withers [1970] VR 319 Brown v State Transit Authority of New South Wales [2000] NSWSC 802 Stanhill Pty Ltd v Jackson [2005] VSC 355

Marian Walker - Plaintiff PARTIES : Mr Brian John Bridgewood - 1st Defendant Ms Elaine Kristen Pfiel - 3rd Defendant

FILE NUMBER(S) : SC 5109/00

COUNSEL : Mr A M Pickles - Plaintiff

SOLICITORS : Mr G P Monteith - 1st Defendant Mr P Clark - 3rd Defendant

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

GZELL J

TUESDAY 11 APRIL 2006

5109/00 MARIAN WALKER v BRIAN BRIDGEWOOD & ORS (NO 2) EX TEMPORE JUDGMENT 1 On 29 March 2006 I gave judgment in this matter. I said that the plaintiff, Marian Walker, was entitled to an order pursuant to the Conveyancing Act 1919, s 89(1)(a) extinguishing the right of way in favour of 70 Beattie Street and 8 Pashley Street on the basis that it ought to be deemed obsolete. I stood the matter over to hear the parties on costs and on the appropriate forms of order. 2 Ms Walker, Brian John Bridgewood, the first defendant, and Elaine Kristen Pfeil, the third defendant, agree on the form of order extinguishing the right of way. (The proceedings between Ms Walker and the second defendant were settled). 3 Ms Walker seeks an order that Mr Bridgewood pay her costs up to 12 July 2004, when Mrs Pfeil was joined in the proceedings, and an order that from that date each of Mr Bridgewood and Mrs Pfeil pay 50% of her costs. The orders sought are based upon the usual rule that, in the exercise of the court's discretion, costs follow the event. 4 Mr Bridgewood and Mrs Pfeil oppose these orders. They point out that there is a line of authority dealing with restrictive covenants, in which courts have departed from orders that costs follow the event. 5 In Re Rose Bay Bowling and Recreation Club Ltd (1935) 52 WN (NSW) 77, Long Innes CJ in Eq said of unsuccessful objectors to an application to vary a restrictive covenant that they had a clear legal right that was being attacked, and they were entitled to put their views before the court. In those circumstances, his Honour regarded the costs incurred by the objectors as necessarily incident to such an application. Where those circumstances were present, his Honour thought it was only right and proper that the applicant should pay all the costs reasonably or necessarily incurred by reason of the application, including the proper costs of the objectors. 6 It was submitted that the decision has not been followed and stands opposed to the decision of the Court of Appeal in Durian (Holdings) Pty Ltd v Cavacourt Pty Ltd (2000) 10 BPR 97830 in which the successful appellant obtained an order for costs against the unsuccessful objector to the extinguishment of a right of way. 7 It was pointed out, however, that the order for costs was made without argument and made simply in consequence of the court allowing the appeal. I do not regard myself bound by that decision to exercise my discretion in accordance with the orders as to costs sought by Ms Walker. 8 In Victoria, the Property Law Act 1958 (Vic), s 84 enables the court to modify restrictive covenants. It is in similar terms to the Conveyancing Act 1919, s 89 dealing with the extinguishment or modification of easements and restrictive covenants. And, I must say, I see no distinction in principle between the two pieces of legislation. 9 In Re Withers [1970] VR 319, Anderson J dealt with an application under the Property Law Act 1958 (Vic), s 84 for the modification of a restrictive covenant. With respect to costs, his Honour said at 320: "Though costs are a matter of discretion and each case stands on its particular facts, such cases as these indicate that, unless the objections taken are frivolous, an unsuccessful objector in a proper case should not have to bear the bitter burden of his own costs when all he has been doing is seeking to maintain the continuance of a privilege which by law is his. The present case is, in my opinion, a case in which I should order the applicant to pay the objectors' cost in these proceedings, and, accordingly, I so order." 10 A somewhat similar view was taken by Hamilton J in Brown v State Transit Authority of New South Wales [2000] NSWSC 802. That was an application for the extinguishment of a right of way under the Conveyancing Act 1919, s 89 that was settled and the only issue was as to costs. His Honour made no order as to costs of the proceedings prior to an event that changed the nature of the application, treating the applicant's case up to that point as not being overwhelming. The event was the sale of the lands as residential properties under contracts that dispensed with the need for the right of way. Thereafter, his Honour regarded the applicant's case as overwhelming and ordered the unsuccessful objector to pay the plaintiff's costs from that date. 11 It was pointed out that the principal proceedings settled before final determination. But in my view that does not limit the discussion as to costs. 12 The notion of making no order as to costs, as distinct from ordering a successful applicant for modification of a restrictive covenant to pay the objectors' costs, was considered by Morris J in Stanhill Pty Ltd v Jackson [2005] VSC 355. The plaintiff was only partially successful. The restriction to one dwelling house was increased to two dwellings. His Honour referred to Re Withers and said at [7]: "If the plaintiff had been wholly successful and had obtained a modification to the covenant so as to permit four or five dwellings, then I would have been inclined to make no order as to costs. But in the present circumstances the appropriate order is that the plaintiff pay the defendants' costs, to be assessed on a party and party basis." 13 It seems to me that in the circumstances where Mr Bridgewood and Mrs Pfeil had registered rights of way benefiting their lands, they were entitled to seek to protect those rights. Their method of protection was not, in my view, frivolous. In those circumstances, where the applicant has been totally successful, I would be inclined to make no order as to costs. 14 On the second day of the trial, however, offers based upon Calderbank v Calderbank [1976] Fam 93 were made by Ms Walker in terms that the right of way be extinguished, save for a footway, Mr Bridgewood and Mrs Pfeil pay her costs up to and including the Friday before the trial started, and each party pay their own costs thereafter. The trial started on a Monday. 15 In my view, while the retention of a footway was an offer better than the result of my judgment, the requirement to pay Ms Walker's costs is against the principle I have indicated I would follow in making no orders as to costs. In those circumstances, and having regard to the fact that the offer was made on the second day of the trial and was open for acceptance for less than a day, it was not unreasonable, in my view, that Mr Bridgewood and Mrs Pfeil should reject the offers. 16 I make an order in terms of paragraph 1 of the judgment order, initialled by me, dated by me, and placed with the papers. I make no orders as to costs.