Eddowes & Eddowes v Proprietors Maricopa Building Units Plan No 3504, Re [1991] QSC 9

10 20 30 40 50 60 .$.c.- 91/ ·07 I R[V!S[D COPi.CS ISSUED ! ·! Co•Jrt Rrapr,rting Bureau I IN THE SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION i Date,/~~ ~J~~/. _J No. o.s. 701 of 1989 BEFORE MR. JUSTICE AMBROSE BRISBANE, 4 FEBRUARY 1991 (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Chief Court Reporter,Court Reporting Bureau.) BETWEEN: IN THE MATTER OF the Property Law Act 1974 -and- IN THE MATTER OF Easement E 53590 over resubdivisions 5 and 6 of subdivision 56 of Portion 14 as shown on Cat Plan No. 89987 on Certificate of Title Volume 3118 Folio 43 PETER JOHN EDDOWES and KERRY HELEN EDDOWES -and- Applicants THE PROPRIETORS "MARICOPA" BUILDING UNITS PLAN NO. 3504 Respondents JUDGMENT HIS HONOUR: In this matter I order that the applicants pay to the respondents any conveyancing costs and stamp duty for which they may become liable in giving effect to the orders made, together with one half of their costs of and incidental to the application to be taxed. Implicit in this order is that the costs will be taxed on a party and party basis. I publish my reasons. ~ J 1 10 20 30 40 50 60 -- 1 of 8 -- IN THE SUPREME COURT OF QUEENSLAND BETWEEN: o.s. 701 of 1989 IN THE MATTER of The Property Law Act 1974 - and - IN THE MATTER of Easement E 53590 over resubdivisions 5 and 6 of subdivision 56 of Portion 14 as shown on Cat.Plan No. 89987 on Certificate of Title Volume 3118 Folio 43 PETER JOHN EDDOWES and KERRY HELEN EDDOWES Counsel: Solicitors: THE PROPRIETORS "MARICOPA" BUILDING UNITS PLAN NO. 3504 Applicants Respondents REASONS FOR ORDER FOR COSTS - AMBROSE J. Delivered the 4th day of February, 1991 Mr. McGregor for Applicants Miss Wilson for Respondents Watkins Stokes town agents for Rapp Hickey & Morgan Flower & Hart town agents for Chan & Coutts Hearing Date: 2nd November, 1990 -- 2 of 8 -- IN THE SUPREME COURT OF QUEENSLAND BETWEEN: O.S. 701 of 1989 IN THE MATTER of The Property Law Act 1974 - and - IN THE MATTER of Easement E 53590 overresubdivisions 5 and 6 of subdivision 56 of Portion 14 as shown on Cat. Plan No. 89987 on Certificate ofTitle Volume 3118 Folio 43 PETER JOHN EDDOWES and KERRY HELEN EDDOWES THE PROPRIETORS "MARICOPA" BUILDING UNITS PLAN NO. 3504 Applicants Respondents REASONS FOR ORDER FOR COSTS - AMBROSE J. Delivered the 4th day of February, 1991 This matter came to trial in August 1990. Judgment was delivered on 12th October, 1990 when the question of costs was reserved. The reasons for judgment which were published on 12th October, 1990 must be read subject to this correction. The matter of costs was argued on 2nd November, 1990 when a good deal of material was placed before me. What emerged clearly enough was that as early as 20th March, 1989 the solicitors for the applicants had sought a mutual extinguishment of the easements to achieve the results of the -- 3 of 8 -- 2 first two orders made upon this application. At that initial stage no offer of compensation was made. Subsequently however an offer of compensation was made but the respondents clearly indicated that they were not interested in compensation irrespective of the amount offered. They indicated that an offer of $1 million would not be sufficient to persuade them to accede to the request for extinguishment of the mutual easements. Thereafter much time and presumably money was spent investigating ways of giving physical access to the respondents by means of the easement over the applicant's land in the event of the redevelopment of that land for business purposes. At that stage nobody apparently gave consideration to the question whether the applicant's land might lawfully be used for residential purposes. After much correspondence that extended over many months the present application was filed on 6th August, 1989. An immense amount of affidavit material was filed by parties involved and the matter finally came on for hearing in August 1990. The hearing extended for three days and involved the calling of a good deal of oral evidence. When making the order determining the matter on 12th October, 1990 I was informed by counsel for the successful applicants that he sought to make submissions on the questions of costs and as I have indicated I refrained from making the order for costs which I then proposed to make to enable the matter to be fully argued. -- 4 of 8 -- 3 In the course of argument reference was made to the order made by Matthews J. in ex parte Proprietors of "Averil Court" Building Units Plan No. 2001 (1983) Qd.R. 66. In that case the successful applicant was ordered to pay the respondent's costs of the application. However reference to the judgment at p. 68 1. F-G makes it clear that from the outset the applicant offered not merely to provide another easement in lieu of the one which it sought to extinguish and to make a payment of $15,000.00 by way of compensation, but also to pay the costs of the respondent of both the application and the conveyancing. In effect this was the order that was made by the trial judge. It became plain in the course of the hearing of this application that neither party to it had adverted to the effect of the town planning scheme upon the right of the respondents to use the easement in issue over the applicant's land for residential purposes. While this was a matter not determinative of the issue between the parties it was certainly a matter of significant weight. In the matter of Profke v. Crowley in which judgment was delivered on 19th June, 1990, Cooper J. declined to make any order for the costs of. the application although the applicant for whose benefit the order was made was ordered to pay compensation and all conveyancing and survey costs and stamp duty and registration fees involved in the transfer. The case was argued on the basis that neither of the parties to the application ought be treated as being in any way at fault with respect to the encroachment which led to the making of the application. -- 5 of 8 -- 4 There can be little doubt on the facts of this application that the applicant's acted reasonably and with justification in attempting to persuade the respondents to join in an extinguishment of the mutual easements affecting the property of both applicants and respondents. An offer of compensation was made but the respondents made it very clear that they were not interested in acceding to the applicant's request no matter how much compensation was paid. When the matter came to trial valuation evidence was called by the respondents to support a claim for compensation in the sum of $30,000.00 - based not upon the cost of demolishing and re-erecting the brick fence in respect of which the award was made, but rather in a purported quantification of the loss of the use of the easement rights and the resulting depreciation in value of some of the home units constructed on the respondent's land. The applicants oppose the making of any order with respect to the costs of the proceedings. It would be quite wrong for persons in the position of the respondents to assume that a court will always give them the costs of opposing an application made under s. 181 of the Property Law Act merely because an applicant has brought them to court in an effort to interfere with rights which the law of property gives them. While every case must be determined upon its own facts, it seems to me that generally speaking the owner of an easement may seek to protect his property rights against interference with them at the hands of an adjoining owner without running the risk of incurring a significant liability for costs. In the usual case he will be able to mount such an opposition . . -- 6 of 8 -- 5 which even if unsuccessful will not subject him to the risk of paying the costs of the successful applicant; moreover it seems to me that an applicant who comes to court seeking relief of the sort which the applicant sought in this case will ordinarily be required to meet costs not unreasonably incurred by a respondent who opposes any interference with its property rights. To my mind however the respondents in the present case went far beyond what was reasonable in contesting and opposing relief sought by the applicants. The basis of the compensation which they sought was not made out. Compensation was assessed on a basis which counsel for the respondents did not seek to establish in the course of the hearing. On the other hand the application was made really for the financial benefit of the applicants as vendors of their property and the respondents could not be held in any way responsible for the necessity arising to make that application. In all the circumstances of the case I have come to the conclusion that the respondents ought recover in addition to any conveyancing costs or stamp duty payable by them as a consequence of the making of the substantive orders only part of their costs of opposing the application. I have given consideration to the material led upon the hearing of the application and to the length of time that the application took. Adopting a broad approach and refraining from analysing in depth the various issues debated and the costs which in my view were needlessly incurred as a result of that debate I have come to the conclusion that the applicants have been put to a very great expense in obtaining the relief which they have -- 7 of 8 -- 6 obtained and that this has been needlessly increased by the opposition mounted by the respondents. The applicants of course will have to bear the whole of their own costs. I have come to the conclusion that the respondents ought not recover more than one half of their party and party costs of this application against the applicants. I do therefore order that the applicants pay to the respondents any conveyancing costs and stamp duty for which they may become liable in giving effect to the orders made and one half of their costs of and incidental to the application to be taxed. Implicit in this order of course is that costs be taxed on a party and party basis. In the reasons for judgment published on 12th October, 1990 I proposed to make and recorded a different order for costs. However that order was not pronounced and with the benefit of the very full arguments and submissions I heard on the question of costs I have come to the conclusion that the proper order for costs in all the circumstances is the one which I now pronounce. -- 8 of 8 --