EB 9 & 10 Pty Ltd v The Owners SP 934 (No 2) [2018] NSWSC 546

Supreme Court New South Wales

Medium Neutral Citation: EB 9 & 10 Pty Ltd v The Owners SP 934 (No 2) [2018] NSWSC 546 Hearing dates: Written submissions 18 and 23 April 2018 Date of orders: 30 April 2018 Decision date: 30 April 2018 Jurisdiction: Equity Before: Kunc J Decision: Declaration made; plaintiff to pay the defendant's costs of the proceedings Catchwords: COSTS - Party/Party - Exceptions to general rule that costs follow the event - Whether Strata Schemes Management Act 2015 (NSW) made adequate provision for the enforcement of rights or remedies which plaintiff sought to enforce in Supreme Court – Application to Supreme Court for declarations to be discouraged where relief to the same effect available in NCAT - Strata Schemes Management Act 2015 (NSW), s 253 Legislation Cited: Strata Schemes Management Act 2015 (NSW) Cases Cited: EB 9 & 10 Pty Ltd v The Owners SP 934 [2018] NSWSC 464 Category: Costs Parties: EB 9 & 10 Pty Limited ACN 140 310 729 (Plaintiff) The Owners — Strata Plan No 934 (Defendant) Representation: Counsel: Dr E Peden (Plaintiff) M R Pesman SC (Defendant)

Solicitors: Clarke Kann Lawyers (Plaintiff) Chambers Russell Lawyers (Defendant) File Number(s): 2016/16782 Publication restriction: No

Judgment

Summary 1. The Court delivered its principal judgment in these proceedings on 12 April 2018: EB 9 & 10 Pty Ltd v The Owners SP 934 [2018] NSWSC 464 (the "Principal Judgment"). These reasons should be read in conjunction with the Principal Judgment and terms defined in those reasons have the same meaning in this judgment. 2. At the time the Court delivered the Principal Judgment, it proposed to the parties these draft orders for their consideration (the "Draft Orders"): 1. A declaration that the plaintiff is entitled to access the common property of Strata Plan 934 (the "Common Property") located on the land identified as Folio Identifier CP/SP 934, located at 45-53 Macleay Street, Potts Point in the State of New South Wales, including for the purposes of parking vehicles in its Lot 89 being a car park space in Strata Plan 934. 2. A declaration that the defendant is not entitled to restrict or impede the plaintiff's access to and use of its Lot 89 in Strata Plan 934 via the Common Property by developing or impeding access to that strip of the Common Property which commences at the southern boundary of Lot 89 and extends 870mm into the Common Property and runs the entire length of the southern boundary of Lot 89 with the Common Property. 3. The defendant pay the plaintiff's costs of the proceedings. 1. The parties were unable to agree on a form of orders to give effect to the Principal Judgment. Written submissions were provided and the parties agreed that the Court should deal with the remaining disputes about the form of the declarations and costs on the papers. 2. The Court has concluded that only a declaration in terms of paragraph (2) of the Draft Orders should be made because, on the proven facts, that is all that is required to quell the dispute. 3. In relation to costs, the Draft Orders reflected the proposition that costs follow the event. However, the Court accepts the defendant's submission that this is a case where, for the purposes of s 253(2) of the Management Act, the Court should form the opinion that the taking of the proceedings in this Court was not justified because the Management Act made adequate provision for the enforcement of the rights and remedies which the plaintiff sought to enforce in these proceedings. Having formed that opinion, s 253(2) requires the Court to order the plaintiff to pay the defendant's costs, notwithstanding the plaintiff's success in the proceedings.