Gordon and Anor v Lever [2019] NSWSC 571

Supreme Court New South Wales

Medium Neutral Citation: Gordon and Anor v Lever [2019] NSWSC 571 Hearing dates: 10 May 2019 Decision date: 17 May 2019 Jurisdiction: Equity - Expedition List Before: Sackar J Decision: See para [31] Catchwords: COSTS- Cost Assessment – Costs under s 88K(5) of Conveyancing Act 1919 (NSW) Legislation Cited: Conveyancing Act 1919 (NSW) Civil Procedure Act 2005 (NSW) Cases Cited: Goodwin v Yee Holdings Pty Ltd (1997) 8 BPR 15795 Gordon and Anor v Lever [2018] NSWSC 1888 McGrath v Metousis [No 2] 2018 NSWSC 32 Rawson v Studholme (2018) NSWSC 1764 Ross Bilton & Ors v Georgia Lidgass [2016] NSWSC 1585 Shi v Abi-K Pty Ltd (2014) 87 NSWLR 568; [2014] NSWCA 293 Stanley Robert Gordon and Anor v Allen John Lever [2017] NSWSC 1282 Texts Cited: n/a Category: Costs Parties: Stanley Robert Gordon (First Plaintiff) Christine Margaret Gordon (Second Plaintiff) Allen John Lever (First Defendant) Debra Ann Lever (Second Defendant) Representation: Counsel: L Byrne (Plaintiffs) G Sirtes SC, C Simpson (Defendants)

Solicitors: John F Gibson (Plaintiffs) Parker & Kissane (Defendants) File Number(s): 2017/55270

Judgment

Background Facts 1. I have already given judgement in this matter twice before in Gordon and Anor v Lever [2017] NSWSC 1282 and Gordon and Anor v Lever [2018] NSWSC 1888. The background facts are laid out extensively in those two judgements and I do not propose to restate them in detail presently. 2. Briefly, the Plaintiffs initially brought proceedings under s 88K of the Conveyancing Act 1919 (NSW), seeking an easement over the Defendants' land. After a hearing of four days, I gave judgement on 22 September 2017 granting an easement but limiting its use to occasions when the alternative access route to the Plaintiffs' land was unsafe due to flooding. I then ordered that each party pay their own costs. 3. The Plaintiffs appealed (and the Defendants cross-appealed on costs). The Court of Appeal remitted the matter for rehearing in respect of certain additional factual matters. The Court of Appeal also set aside the costs order and remitted the question of costs. The Defendant was ordered to pay 80% of the Plaintiffs' costs of the appeal. 4. The further hearing took place over four days at the end of November 2018. Having delivered my second judgment in this matter on 14 December 2018 there was outstanding the question of costs. In particular what costs ought to be awarded pursuant to s 88K(5) of the Conveyancing Act. 5. The opposing alternatives are stark. The Plaintiffs seek, that in relation to the earlier proceedings of 2017 and the second proceedings, an Order should be made that each party pay their own costs (T32/10). 6. The Defendants, on the other hand, seek an order that their costs be paid on an ordinary basis to 14 May 2018 and thereafter on an indemnity basis (Defendants submissions on costs [5]).