Knight v Carter [2015] NSWSC 609

Supreme Court New South Wales

Medium Neutral Citation: Knight v Carter [2015] NSWSC 609 Hearing dates: 24 April 2015 Date of orders: 22 May 2015 Decision date: 22 May 2015 Jurisdiction: Equity Division Before: Bergin CJ in Eq Decision: No order as to costs. Catchwords: COSTS – settlement of proceedings after conclusion of evidence – various offers of settlement – reasonableness of conduct of parties

LEGAL PRACTITIONERS – Court's expectation of legal practitioners in heated property disputes Legislation Cited: Conveyancing Act 1919 Cases Cited: Calderbank v Calderbank [1975] 3 All ER 333 Edwards Madigan Torzillo Briggs Pty Ltd v Gloria Stack & Ors [2003] NSWCA 302 Fordyce v Fordham & Anor [2006] NSWCA 274; (2006) 67 NSWLR 497 One.Tel Ltd v Deputy Commissioner of Taxation (2000) 101 FCR 548 Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622 Category: Costs Parties: Wayne Charles Knight (1st Plaintiff) Christine Mari-Anne Knight (2nd Plaintiff) Kathy Anne Carter (Defendant) Representation: Counsel: DW Robertson (Plaintiffs) D Neggo (Defendant)

Solicitors: Baker Deane & Nutt (Plaintiffs) Stacks Law Firm (Defendant) File Number(s): 2015/66290 Publication restriction: Nil

Judgment 1. The serene countryside of rural Wamboin, New South Wales, belies the turbulence of the heated dispute between two neighbours who live in the area. The dispute was between the plaintiffs, Wayne Charles Knight, and his wife, Christine Mari-Anne Knight, and their neighbour, Kathy Anne Carter. The plaintiffs have rights of carriageway and covenants over the defendant's property. 2. The plaintiffs had enjoyed a co-operative and happy relationship with their previous neighbour. It was only in more recent times when the defendant and her husband purchased the neighbouring property that problems arose. This relationship soured very badly when the defendant decided to unilaterally cut off the plaintiffs' access to the electricity supply to the bore pump that had been enjoyed for some years prior to the eruption of this dispute. 3. The plaintiffs had constructed the gates to their property on the boundary adjacent to the right of carriageway on the defendant's land. They had also constructed a light post/intercom in the right of carriageway. This had been done with the consent of the previous owner of the defendant's property but was not acceptable to the defendant. 4. The plaintiffs commenced proceedings by Summons filed on 4 March 2015 seeking a declaration that as the registered proprietors of their property, pursuant to a registered easement for water supply and registered positive covenant burdening the neighbouring land of the defendant, they are entitled to: (a) take and make use of water drawn from a bore and a dam on the defendant's land; (b) take and make use of such water by means of the installation, use and operation of plant and equipment on the defendant's land including pumps, pipes and electrical fittings; and (c) enter the defendant's land and take anything onto it and carry out work to install, use, maintain and repair the plant and equipment, including but not limited to running an electricity supply underground from their land onto the defendant's land for the purpose of supplying electricity to the plant and equipment at the bore and at the dam. 5. The plaintiffs also sought a declaration that they were entitled to install, use and maintain the light post/intercom on the right of carriageway. 6. On 13 March 2015 the proceedings were listed for final hearing on 24 April 2015 for one day. Also on 13 March 2015 agreement was reached in respect of the plaintiffs' interlocutory application relating to what then had obviously become a rather heated relationship between the parties. Undertakings were given to the Court by the defendant that she would permit the plaintiffs to have access to electricity for the bore pump and to extract water. 7. At the hearing of the matter on 24 April 2015 Mr DW Robertson, of counsel, appeared for the plaintiffs and Mr D Neggo, of counsel, appeared for the defendant. 8. The trial proceeded. Mr Knight was cross-examined. The defendant's husband, Ashley Carter, was cross-examined. After all the evidence had been given the parties entered into a consent regime which included the making of declarations. A declaration was made that the plaintiffs, pursuant to an instrument created under s 88B of the Conveyancing Act 1919 and registered on 23 December 2008, were entitled to take and use the water drawn from the bore on the defendant's land and to run water in pipes through the defendant's land and connect an underground electricity supply to the bore as set out in the Short Minutes of Order. There was also a declaration that the plaintiffs were entitled to take and make use of the water drawn from the dam on the defendant's land and to run water in the pipes from the dam on the defendant's land to the plaintiffs' land in accordance with the Short Minutes of Order. 9. The Court noted the parties' agreement that by 23 October 2015 the plaintiffs will remove the light post/intercom and any wires attached to it from the defendant's property. The Court also noted the parties' agreement that each would only take and make use of water drawn from the dam for any purposes which could not be satisfied by obtaining water from the bore or when the water from the bore was unavailable. Leave was granted for the defendant to withdraw the undertakings given to the Court on 13 March 2015. 10. The Summons was otherwise dismissed. A regime was then entered into for the service of short outlines of submissions on costs, which regime concluded on 14 May 2015. The parties consented to the arguments on costs being dealt with on the papers.