The Owners – Strata Plan 17719 v Arcidiacono (No 2) [2019] NSWSC 1800

Supreme Court New South Wales

Medium Neutral Citation: The Owners – Strata Plan 17719 v Arcidiacono (No 2) [2019] NSWSC 1800 Hearing dates: 11 and 12 December 2019 Date of orders: 16 December 2019 Decision date: 16 December 2019 Jurisdiction: Equity Before: Henry J Decision: (1) Declare that The Owners – Strata Plan No. 17719 is entitled to a right of carriageway giving full and free right for every person who is at any time entitled to an estate or interest in possession in the land herein indicated as the dominant tenement, being the whole of the common property comprised in Folio Identifier CP/SP17719, or any part thereof with which the right shall be capable of enjoyment, and every person authorised by that person, to go, pass and repass at all times with or without animals or vehicles or both, to and from the said dominant tenement or any such part thereof, for commercial, retail and residential purposes, appurtenant to the land in Folio Identifier 2/1052948 and Folio Identifier 1/619464. (2) The defendants to produce Certificate of Title, Folio Identifier 2/1052948 and Certificate of Title, Folio Identifier 1/619464 to the Registrar-General within 21 days of the date of these orders to enable registration of the said easement. (3) Reserve liberty to apply as to the implementation of orders 1 and 2 above. (4) Except in relation to costs which are the subject of orders previously made against the defendants in these proceedings, the defendants to pay 50% of the plaintiff's costs of the proceedings on the ordinary basis, in an amount to be agreed or assessed. (5) Orders 1, 2 and 3 be stayed until the appeal against the whole of the principal judgment and these orders, in respect on which a notice of intent to appeal dated 25 October 2019 has been filed by the defendants (Appeal), is determined or otherwise ordered. (6) Until the defendants' Appeal is determined or otherwise ordered, the defendants are restrained from: (a) locking a gate on the land comprised in Lot 1 in DP 619464 (Passage) and Lot 2 in DP 1052948 (Dock) and (b) placing any skip bin or other items in the Passage or Dock which obstruct vehicular access including garbage trucks. Catchwords: COSTS – where plaintiff sought easements on various bases including by prescription, express grant and s 88K Conveyancing Act 1919 (NSW) – where orders under s 88K not required because plaintiff succeeded on prescriptive easement claim – where plaintiff failed on express grant claim – where successful prescriptive easements claim based on late amendment - whether plaintiff should pay defendants' costs pursuant to s 88K(5) – whether departure from the usual order warranted – costs apportioned Legislation Cited: Civil Procedure Act 2005 (NSW), s 98 Conveyancing Act 1919 (NSW), s 88K Uniform Civil Procedure Rules 2005 (NSW), r 42.1 Cases Cited: Beoco v Alfa Laval Co Ltd [1995] QB 137 Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304 Dodds Family Investments Pty Ltd v Lane Industries Pty Ltd (1993) 26 IPR 261 Doppstadt Australia Pty Ltd v Lovick & Son Developments Pty Ltd (No 2) [2014] NSWCA 219 James v Surf Road Nominees Pty Ltd (No 2) [2005] NSWCA 296 Kaines (UK) Ltd v Österreichische Warrenhandelsgesellschaft (formerly CGL Handelsgesellschaft MBH) [1993] 2 Lloyds Rep 1 Latoudis v Casey (1990) 170 CLR 534 Leading Edge Events Australia Pty Ltd v Kiri Te Kanawa (No 2) [2007] NSWSC 568 Macquarie International Health Clinic Pty Ltd v Sydney South West Area Health Service (No 2) [2011] NSWCA 171 Murrihy v Radio 2UE Sydney Pty Ltd [2000] NSWSC 318 Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 Rawson v Studholme (No 2) [2019] NSWSC 1273 Ross Bilton & Ors v Georgia Ligdas (Costs) [2016] NSWSC 1585 Sze Tu v Lowe (No 2) [2015] NSWCA 91 Waterman v Gerling Australia Insurance Co Pty Ltd (No 2) [2005] NSWSC 1111 Category: Costs Parties: The Owners – Strata Plan No 17719 (Plaintiff) John Anthony Arcidiacono (First Defendant) Anna Marie Arcidiacono (Second Defendant) Representation: Counsel: Ms C A Webster SC (Plaintiff) Mr T S Hale SC with Mr R Higgins (Defendants)