Jarosz v State of New South Wales (No 2) [2019] NSWSC 861

Supreme Court New South Wales

Medium Neutral Citation: Jarosz v State of New South Wales (No 2) [2019] NSWSC 861 Hearing dates: On the papers Date of orders: 10 July 2019 Decision date: 10 July 2019 Jurisdiction: Equity Before: Darke J Decision: Unsuccessful plaintiffs ordered to pay costs of the defendants, including a portion of the second defendant's costs on an indemnity basis. Catchwords: COSTS – departure from the usual rule – public interest litigation – where plaintiffs were unsuccessful in contending that a certain road that connected several isolated properties in the Burragorang State Conservation Area became a public road at common law in about the mid-nineteenth century – whether object of the proceedings was to vindicate public rather than private rights – proceedings held to vindicate private rights – no reason to depart from the general rule

COSTS – departure from the usual rule – whether indemnity costs should be paid by the plaintiffs to the second defendant – whether the plaintiffs' conduct of the proceedings was relevantly delinquent – where the evidence in support of the plaintiffs' case was weak – where plaintiffs ought to have known their case was almost certainly doomed to fail following the service of evidence from a specialist searcher of land titles which showed the land on which the road was located was at all times Crown land – part of the second defendant's costs awarded on an indemnity basis Legislation Cited: Conveyancing Act 1919 (NSW), s 178 Crown Lands Alienation Act 1861 (NSW) Local Government Act 1906 (NSW) Uniform Civil Procedure Rules 2005 (NSW) r 42.1 Cases Cited: Drummond v Drummond [1999] NSWSC 923 Jarosz v State of New South Wales [2019] NSWSC 692 Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 Category: Costs Parties: David Jarosz (First Plaintiff) Margaret Jarosz (Second Plaintiff) State of New South Wales (First Defendant) Wollondilly Shire Council (Second Defendant) Representation: Counsel: Mr R J de Meyrick (Plaintiffs) Mr I L Harvey (First Defendant) Mr S Fitzpatrick (Second Defendant)