Australian Unity Retirement Living Management Pty Ltd v Karimbla Properties (No. 10) Pty Limited (No. 2) [2019] NSWSC 1135

Supreme Court New South Wales

Medium Neutral Citation: Australian Unity Retirement Living Management Pty Ltd v Karimbla Properties (No. 10) Pty Limited (No. 2) [2019] NSWSC 1135 Hearing dates: 12 & 19 July, 14 August 2019 Date of orders: 02 September 2019 Decision date: 02 September 2019 Jurisdiction: Equity Before: Slattery J Decision: Variations permitted. Amendment to the cross-claim disallowed. Costs of compliance with the supervisory aspects of traffic control on the easement allocated two-thirds to the defendants. Apart from the cross-claim, the defendants are to pay 75 per cent of the plaintiffs' costs of the proceedings. Catchwords: JUDGMENTS AND ORDERS – Amending, varying and setting aside – defendants propose variations to the Court's orders of 31 May 2019 – plaintiffs submit that the Court has no jurisdiction to make certain variations to the orders – plaintiffs also argue that variations sought are not specifically mentioned in the Court's reasons in primary decision as subject matters that the Court reserves for further consideration – what variations should be made.

EASEMENTS – costs of compliance with orders for supervision of traffic on an easement – what party should bear costs of complying with the supervisory aspects of the Court's previous orders.

COSTS – who should bear the costs of the proceedings apart from the cross-claim – plaintiffs seek indemnity costs.

CIVIL PROCEDURE – Pleadings – Amendment – defendants seek amendments to cross-claim after judgment – whether amendments should be allowed at this stage in the proceedings – amendments disallowed. Legislation Cited: Uniform Civil Procedure Rules 2005, r 36.16 Cases Cited: AON Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 Australian Unity Retirement Living Management Pty Ltd v Karimbla Properties (No. 10) Pty Limited [2019] NSWSC 635 Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300 Buckley v Timbury (No. 2) [2013] NSWSC 1389 Griffith v Australian Broadcasting Corporation (No. 2) [2011] NSWCA 145 Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 Zenere v Leate (1980) 1 BPR 97,029 Category: Consequential orders (other than Costs) Parties: First plaintiff: Australian Unity Retirement Living Management Pty Ltd (ACN 003 434 115) Second plaintiff: Lifestyle Manor Bondi Pty Ltd (ACN 107 908 234) Third plaintiff: Lifestyle Manor Anglesea Pty Ltd (ACN 114 898 181) Fourth plaintiff: Australian Unity Aurora Pty Ltd (ACN 615 512 886)