Braye v Tarnawskyj (No 2) [2019] NSWSC 659

Supreme Court New South Wales

Medium Neutral Citation: Braye v Tarnawskyj (No 2) [2019] NSWSC 659 Hearing dates: On the papers Date of orders: 05 June 2019 Decision date: 05 June 2019 Jurisdiction: Equity Before: Darke J Decision: Form of order settled. Plaintiff entitled to indemnity costs from 1 March 2019. Catchwords: PRACTICE AND PROCEDURE – judgments and orders – form of orders to be made following delivery of judgment – dispute over new boundaries between the plaintiff's and second defendant's land following the Court's determination that most of the first defendant's title to the claimed land is extinguished by the plaintiff's adverse possession – plaintiff's proposed orders preferred

COSTS – departure from the general rule – offers of compromise – plaintiff made two offers of compromise shortly before the hearing – neither offer accepted by the defendants – plaintiff obtains judgment more favourable than offers – whether offers constituted genuine compromises – whether it was reasonable to not accept either offer – offers held to be genuine compromises – defendants failure to accept offers not shown to be reasonable Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), rr 20.26, 42.14 Cases Cited: Braye v Tarnawskyj [2019] NSWSC 277 County Securities Pty Ltd v Challenger Group Holdings Pty Ltd (No 2) [2008] NSWCA 273 Elite Protective Personnel Pty Ltd v Salmon [2007] NSWCA 322 Gray v Hobson (No 2) [2018] NSWCA 131 Kooee Communications Pty Ltd v Primus Telecommunications Pty Ltd (No 2) [2008] NSWCA 85 Thorpe v Frank [2019] EWCA Civ 150 Category: Costs Parties: Keith Stanley Braye (Plaintiff) Gloria Millicent Tarnawskyj (as Administrator of the Estate of the late Mary King) (First Defendant) Simon John Ward (Second Defendant) Representation: Counsel: Mr J Horowitz (Plaintiff) Mr R D Marshall SC (Second Defendant)