David Peter Buckley v David Francis Timbury & Anor (No 2) [2013] NSWSC 1389

Supreme Court New South Wales

Medium Neutral Citation: David Peter Buckley v David Francis Timbury & Anor (No 2) [2013] NSWSC 1389 Hearing dates: 1 August 2013 Decision date: 20 September 2013 Jurisdiction: Equity Division Before: Slattery J Decision: First defendant restrained from placing rocks in or near the subsoil drains under the easement. Order stayed pending parties' compliance with previous consent orders. Plaintiff to pay 25% of the defendants' costs incurred in relation to prayers (1)-(3) of the Summons. Catchwords: REAL PROPERTY - easement - actionable interference to easement by blocking sub-surface drains with rocks made out - parties unable to agree on final orders - whether injunction restraining placement of rocks an appropriate form of relief - whether a declaration should be made - whether any injunction should be conditional on the payment agreed in the previous consent orders. COSTS - plaintiff unsuccessful in relation to a dominant issue but successful on a lesser issue - relief granted against the first defendant only - no interference on the part of the second defendant - whether the plaintiff should pay some or all of the defendants' costs - whether the first and second defendant's costs should be treated differently - whether any presumption that first and second defendant each liable for half of the costs should be applied - whether a more flexible apportionment is possible, in the circumstances. Legislation Cited: Uniform Civil Procedure Rules 2005, r 36.1, r 42.1 Cases Cited: AG NSW v Radio 2UE Sydney Pty Ltd and Anor [1993] NSWCA 134 David Peter Buckley v David Francis Timbury & Anor [2013] NSWSC 1009 Elite Protective Personnel Pty Ltd and Anor v Salmon (No 2) [2007] NSWCA 373 Korner v H Korner & Co Ltd [1951] Ch 10 Mantec Thoroughbreds Pty Ltd v Batur (2009) 25 VR 507 Maylord Equity Management Pty Ltd v Reeltime Media Ltd (No 2) [2008] NSWSC 1133 Zenere v Leate (1980) 1 BPR 9300 Category: Consequential orders Parties: Plaintiff:- David Peter Buckley First Defendant:- David Francis Timbury Second Defendant:- Susan Elsie Timbury Representation: Counsel: Plaintiff:- Ms L. Doust First and Second Defendants:- Mr J. Hewitt Solicitors: Plaintiff:- James Edward Behringer, Harris & Co Solicitors First and Second Defendants:- John Joseph Woodward, Turnbull Hill Lawyers File Number(s): 2012/142622 Publication restriction: No