Llavero v Shearer (No 2) [2015] NSWSC 284

Supreme Court New South Wales

Medium Neutral Citation: Llavero v Shearer (No 2) [2015] NSWSC 284 Hearing dates: 24 February 2015 Date of orders: 24 March 2015 Decision date: 24 March 2015 Jurisdiction: Equity Division Before: Young AJA Decision: 1.Order that the plaintiffs' claim for damages for loss of support be dismissed. 2.The first cross-claim made by second further amended statement of cross-claim filed by the first and second defendants on 19 March 2014 is dismissed. 3.That, pursuant to section 3(2)(b) of the Encroachment of Buildings Act 1922 (NSW) ("the Act") and all other enabling powers: a.an easement ("the Easement") is imposed over that part of the land known as 100 Stanmore Road, Stanmore in the State of New South Wales being the land contained in Folio Identifier A/DP315030 ("Servient Tenement") which is marked "X" on the plan appearing at Annexure A to these orders; b.the land to which the benefit of the easement is appurtenant is the land known as 106 Stanmore Road, Stanmore in the State of New South Wales being the land contained in Folio Identifier 1/313819 ("Dominant Tenement"); c.the nature of the Easement is an easement to permit an encroaching structure to remain; d.the terms of the Easement are those set out in Annexure B to these orders; e.the persons having the right to release, vary or modify the easement or to consent thereto are the registered proprietor for the time being of the Servient Tenement. 4.That, pursuant to section 4(1) of the Act, the compensation to be paid by the first and second defendants to the plaintiffs in respect of the Easement is $1,100. 5.The costs of registration of the Easement are to be paid by the first and second defendants. 6.Order that the second cross-claim be dismissed with costs. 7.Order that the first and second defendants pay two thirds of the plaintiffs' costs of the plaintiffs' claim pursuant to s 3 of the Encroachment of Buildings Act. 8.Subject to order 9, order that the plaintiffs pay the defendants' costs of the plaintiffs' claim for damages for loss of support. 9.Order that the first and second defendants not be entitled to any costs: a.for the second day of the hearing; and b.of their estoppel defences, contributory negligence defence, and proportionate liability/contribution defences. 10.Order that the first and second defendants pay the third defendant's costs of the first cross-claim. 11.Any general costs not otherwise provided for of the plaintiffs or the first and second defendants are to be paid by the person incurring the costs. 12.The compensation payable by the first and second defendants to the plaintiffs pursuant to order 8 be set-off against the costs recoverable by any party after such costs have been agreed or assessed, and the net costs be paid by the plaintiffs to the first and second defendants or vice versa as the case may be. 13.Liberty to apply on 7 days' notice. 14.The Exhibits may be returned after 28 days. Catchwords: COSTS – matter of costs dealt with by way of issues – Calderbank letters – indemnity costs – set off – no reason why opponent should get costs for time that was unnecessarily expended