COSTS – whether indemnity costs should be ordered against the
applicant – whether the approach by the applicant was unreasonable
or
whether the approach by the respondent was unreasonable – where the
Source
Original judgment source is linked above.
Catchwords
COSTS – whether indemnity costs should be ordered against theapplicant – whether the approach by the applicant was unreasonableorwhether the approach by the respondent was unreasonable – where therespondent reasonably required details of the encroachmentonto the bodycorporate propertyREAL PROPERTY – CREATION OF EASEMENTS – COURT ORDERS TO PROMOTELAND DEVELOPMENT – whether statutory right of usershould be grantedproviding for temporary access to respondent’s land – where theparties have agreed on orders and conditionsBody Corporate and Community Management Act 1997 (Qld) ss 36,94Property Law Act 1974 (Qld) s 180Uniform Civil Procedure Rules 1999 (Qld) rr 26, 28, 681Ainsworth v Albrecht [2016] HCA 40(2016) 261 CLR 167, citedBody Corporate for Torwood Hill Resident’s Retreat v Fittell[2020] QSC 32, considered
Chaina v Alvaro Homes Pty Ltd [2008] NSWCCA 353, cited
Colgate Palmolive Co v Cussons Pty Ltd [1993] FCA 801
(1993) 46 FCR
225, applied
Di Carlo v Dubois [2002] QCA 225, applied
Enhance Property Investments No 3 v Pier Traders Pty Ltd [2022] QSC
160, distinguished
Ex parte Edward Street Properties Pty Ltd [1977] Qd R 8,
cited
Lang Parade Pty Ltd v Peluso [2005] QSC 112
[2006] 1 Qd R 42,
applied
Legal Services Commissioner v Bone [2014] QCA 179, cited
M Salazar Properties Pty Ltd v Jeffs [2024] QCA 257, applied
Naylor & Anor v Pierce & Anor [2010] QSC 399, considered
Oshlack v Richmond River Council [1998] HCA 11
(1998) 193 CLR 72,
applied
Pacific Coast Investments Pty Ltd v Cowlishaw [2005] QSC 259,
considered
Plenty v Dillon [1991] HCA 5
(1991) 171 CLR 635, cited
2040 Logan Road Pty Ltd v Body Corporate for Paddington Mews CTS 39149
[2016] QSC 40, applied
Judgment (170 paragraphs)
[1]
COSTS - whether indemnity costs should be ordered against the applicant - whether the approach by the applicant was unreasonable or whether the approach by the respondent was unreasonable - where the respondent reasonably required details of the encroachment onto the body corporate property
[2]
REAL PROPERTY - CREATION OF EASEMENTS - COURT ORDERS TO PROMOTE LAND DEVELOPMENT - whether statutory right of user should be granted providing for temporary access to respondent's land - where the parties have agreed on orders and conditions
2040 Logan Road Pty Ltd v Body Corporate for Paddington Mews CTS 39149[2016] QSC 40, applied
[21]
Mr D O'Brien KC and Mr L Campbell for the applicant
[22]
[1] This is an application by 21 Broadbeach Blvd Pty Ltd (the Developer) against the respondent (Oceana) for an order pursuant to s 180 of the Property Law Act1974 (Qld) (PLA) to enable it to access the respondents land to continue its development of a 22-storey residential building on Broadbeach Boulevard, Broadbeach.
[2] The parties agreed as to the terms of the order on the first day of the hearing, although of course the remedy remains in the discretion of the court.
[3] The remaining issue between the parties is whether I should order indemnity costs against the Developer or make another costs order. Originally, the Developer argued I should order it pay costs of $10,000 plus GST. During the argument however, the Developer conceded I should order that it pay 50% of costs on the standard basis.
[4] For the reasons set out below, I have decided that the conduct of the Developer was unreasonable in this matter. I have concluded that it should pay Oceana's costs on an indemnity basis.
[23]
[5] The development land is a block of only 510 square meters. The land shares its western and southern boundaries with the Oceana property. The purpose of this application is to enable the Developer to erect temporary fencing/hoarding; access, erect, and remove scaffolding on Oceana's property and to conduct other construction activities.
[6] The western boundary of the land with Oceana is 28.146 meters long, this consists of 900 square meters of land with vegetable patches and plants. The southern boundary is 18.1 meters long, which mainly consists of a grass verge.
[7] The extent of the temporary access area within Oceana's land is 37.4 square meters, comprising of:
[24]
(a) A 200 mm wide strip along the western boundary (3.62mm2)
(b) A 1200 mm wide strip along the southern boundary (33.8m2)
[25]
[8] The Oceana property has been fully developed since 1997 and consists of two residential towers and recreational facilities at the northern end of the property. The Gold Coast City Council approved the development by the Developer in late 2022. The Developer entered into a building contract with a GlenQ Pty Ltd and construction commenced in mid-2024.
[9] In September 2024, Oceana commenced proceedings against the Developer seeking an injunction to restrain trespass and nuisance on Oceana's land. This injunction was granted by Kelly J. It may be accepted that the Developer did trespass onto Oceana's land.
[10] This dispute was originally resolved by an agreement between the parties on 18 October 2024. The agreement granted a licence to the Developer to use part of Oceana's land and for the Developer to pay $21,000 to Oceana for its costs, and for the removal of a tree. The licence agreement was effective until 31 July 2025 and permitted the Developer, on payment of a licence fee of $25,000, to carry out works adjacent to Oceana's property, to construct shoring works to support Oceana's land and to enable maintenance of a temporary fence.
[11] On 13 February 2025, Oceana wrote to the Developer claiming that the Developer was in in breach of the agreement by unlawfully installing hoarding safety fencing and a security camera and removing trees, vegetation and soil. Notice was given that unless the default was remedied, Oceana would terminate the agreement and issue proceedings.[1]
[12] On 18 February 2025, the Developer replied noting that it had an obligation to remediate the area, that safety was paramount and that Oceana had trespassed.[2]
[13] On 26 February 2025, Oceana replied advising a surveyor attended and was wrongfully prevented from accessing the area and this was a default.[3]
[14] On 4 March 2025, Oceana wrote to the Developer advising that sheet piling and a boundary support system had not been removed as agreed.[4]
[15] On 11 March 2025, Oceana gave the Developer a notice terminating the licence agreement on the grounds specified in earlier letters and requiring offending items to be removed by 14 March 2025.[5]
[16] On 12 March 2025, the Developer wrote to Oceana disputing the alleged breaches and noting that there should be a variation to the licence, but if this was rejected, then it would necessitate the Developer applying for a statutory right of user and "given the minor nature of the matter and the terms of the agreement already reached it is not expected that would be required here." There was no mention of the need for scaffolding to be erected on Oceana's land.
[26]
[18] On 19 March 2025, the Developer commenced this proceeding by originating application (OA) returnable on 11 April 2025.[7] The claim at that time was for the Developer to be given a licence and rights to access the land on the conditions set out in the schedule. The schedule referred to:
[27]
(a) A fee of $5,000 and $5,000 in costs.
(b) Seeking interim access rights for fencing/hoarding and security cameras on an interim access area (IAA).
(c) Seeking temporary access rights for temporary fencing/hoarding; accessing, erecting, and removing scaffolding on the development land.
(d) Other construction activities for the construction of the development.
(e) The interim access period was until 30 April 2025.
(f) The temporary access period on the temporary access area (TAA) was until 31 July 2026.
[28]
[19] I note that the Developer did not put forward any proposal to Oceana concerning scaffold access prior to issuing the proceedings. I also note there was no material filed supporting the application.
[20] On 20 March 2025[8], the Developer wrote to Oceana pointing out:
[29]
(a) That it had proposed variations in the letter dated 12 March 2025.
(b) Without notice, Oceana issued proceedings the next day.
(c) This necessitated the filing of this application.
(d) There were now four proceedings in the Supreme Court regarding the temporary use of a garden bed.
(e) These were minor matters which should be resolved simply.
(f) To resolve the matter, a licence agreement was proposed concerning a crane over sail and there be a variation to the licence agreement for surface rights. Further proposed conditions included:
(i) Oceana discontinue its proceedings.
(ii) One Mr Bray would not be sued for trespass.
(iii) There would be no exchange of money.
(iv) The offer was open until 24 March 2025.
[30]
[21] On 25 March 2025, the Developer applied to dismiss Oceana's proceeding (BS 954/25) on the basis that Oceana had not passed a special resolution of its members before commencing the proceeding.
[22] On 27 March 2025, Oceana applied that this proceeding be heard with BS954/25 and for an order for costs. [9]
[23] On 4 April 2025, the Developer's application was heard. On 7 April 2025, the Chief Justice stayed BS954/25 until a body corporate resolution had been passed but otherwise dismissed the application, with no order as to costs.[10]
[24] On 9 April 2025, Oceana wrote to the Developer raising concerns about the absence of affidavit material or proposed directions to progress this application. It also noted that the hoarding fencing and security cameras had been repositioned which formed the basis of the IAA. Confirmation was sought on whether this relief was still sought.[11]
[25] On 9 April 2025, the Developer responded stating that supporting material and proposed directions would be served shortly and questioning if Oceana was pressing the joinder application.[12]
[26] Oceana replied noting that the Developer had not filed any supporting material, in breach of r 28[13]. It noted that the Developer's application was brought after it trespassed on Oceana's land and Oceana had issued proceedings. It also noted that there was no urgency in the Developer's application as no supporting material had been filed. It noted "Our client is not able to meaningfully consider your client's material and what steps may be required to progress the application until it considers the material and takes advice from us and most likely its experts." Oceana also noted that it appeared the Developer did not require access to as much land as proposed in the application. It invited amendment. It proposed a timetable of events.[14]
[27] On 10 April 2025, the Developer responded by email at 12:32pm attaching a draft directions order as to the filing of material.[15]
[28] At 1:39pm, Oceana requested information as to when the Developer's material would be filed and whether an amended OA would be filed.
[31]
(a) The interim access rights were no longer required (paragraph 24).
(b) The perimeter scaffolding was to be erected from ground level to level 6. The scaffolding would be side mounted with supporting legs and located within the temporary access area on Oceana's land (paragraph 33).
(c) Exhibit ALQ-06 are the scaffolding plans. The plans[18] noted that there was a light duty rating of 225kg with a maximum number of 2 levels. The plans also noted that the client must ensure the supporting foundation had an adequate bearing capacity to support the load imposed by the scaffold. This should be supplied to the client by means of a report from an engineer or written confirmation that the supporting ground or structure is adequate for the loads. (my underlining)
[32]
[34] Despite the applicant's submission, on my assessment the drawings did not provide clear detail of where and to what extent the scaffolding was to be placed on Oceana's land.
[35] On 16 April 2025, Oceana wrote to the Developer noting:[19]
[33]
(a) Mr Quinn no longer required access rights which was inconsistent with the OA. The OA should be amended.
(b) The affidavit noted that the scaffolding would be mounted on Oceana's land while the OA referred to the Developer's land.
(c) Oceana might lead expert evidence as to whether it was reasonably necessary for the scaffolding support legs to be on its land.
(d) The term "construction activities" was ambiguous and details of this were sought.
[34]
[36] On 16 April 2025 the Developer responded, noting[20]:
[35]
(a) There was no need to amend the application concerning the IAA.[21]
(b) The temporary access rights comprised the footings and potentially the body of the scaffolding. It was difficult to see how expert evidence was warranted.
(c) As to the construction activities, this was access for personnel to parts of the construction site.
[36]
[37] On 17 April 2025, the matter was reviewed by Williams J. Directions were given that Oceana file its lay affidavits by 15 May 2025, any expert evidence by 30 May 2025 and the matter be listed for further directions on 19 May 2025.[22]
[38] Also on 17 April 2025, the Developer wrote to Oceana noting[23]:
[37]
(a) The safety fencing located on Oceana's land was pursuant to a statutory requirement.
(b) Mr Bray, a member of the body corporate, intentionally breached the safety fence.
(c) Because of the delay in Oceana obtaining expert evidence, a request was made to keep the safety fence in place and in that regard sought an undertaking.
[38]
[39] On 24 April 2025, Oceana provided an undertaking which was accepted on conditions.[24]
[40] On 28 April 2025, the Developer wrote to Oceana noting, with respect to the undertaking, it did not cover all of the existing fence. It acknowledged the conditions proposed.[25]
[41] On 15 May 2025, Oceana served the affidavits of Kerry Tomlin, Mark Hayler, Ron Frigo and Sydney Yates.
[42] On 17 May 2025, Oceana wrote to the Developer, noting[26]:
[39]
(a) That the scaffolding was noted in Mr Quinn's affidavit to be up to level 6.
(b) Oceana had engaged an engineer to provide expert advice with respect to the scaffolding.
(c) The plans do not show scaffolding present from ground level to level 2, and the scaffolding present appears to be fully contained on the Developer's land and not on Oceana's land.
(d) If it was pressed that scaffolding was to be located on Oceana's land, then accurate scaffolding plans showing the full extent of the scaffolding needed to be provided.
[40]
[43] On 19 May 2025, the matter was reviewed before Hindman J and the matter adjourned until 23 May 2025.[27]
[44] Further on 19 May, Oceana wrote to the Developer[28]:
[41]
(a) Urgently requesting accurate scaffolding plans/drawings showing the full extent of the scaffolding to be installed on Oceana's land.
(b) A more precise definition of "other construction activities."
[42]
[45] Mr Quinn's second affidavit was filed on 19 May 2025 (second Quinn affidavit). This deposed to the following:
[43]
(a) The ground floor slab would be poured by 27 June 2025.
(b) No meaningful construction work could commence without perimeter scaffolding.
(c) The scaffolding was from ground level to level 6. It was required for safety reasons.
(d) The would be significant financial implications with ongoing delay.
[44]
[46] On 20 May 2025, the Developer wrote to Oceana pointing out[29]:
[45]
(a) That the plans provided to date did not show the base of scaffolding located in the access area. Two drawings were attached which claimed to show the planned erection of the scaffolding.[30]
(b) The base of some of the scaffolding may need to be located on the access area. It would likely be 2-3 floors high.
(c) It was understood that there may be concerns that the scaffolding may impact on Oceana's basement[31] but this was not possible as:
(i) There was no material load placed on the base of the scaffolding.
(ii) The minimal weight would be spread over the base area.
(iii) The location of the scaffolding is too far away from the basement wall.
(iv) The scaffolding is light duty (225kg), the equivalent of 2-3 large men.
(d) As to construction activities, these include the scaffolding; storage of construction materials; construction access and any other construction related activity to comply with the approved development.
[46]
[47] On 20 May 2025, Mr Cocks (Oceana's engineer) wrote[32]:
[47]
(a) That the loads were about 1.5t per leg. These should not be exceeded by any scaffolding placed within the TAA.
(b) The Oceana basement wall is located about 1300mm from the boundary. Any scaffolding located on the western elevation would be within the zone of influence on the basement wall and may have an adverse impact on the basement wall. It is recommended there be no scaffolding located on this side.
[48]
[48] On 23 May 2025, Mr Quinn provided a third affidavit (third Quinn affidavit). This deposed to:
[49]
(a) The amount of delay costs.
(b) His belief that any lightweight scaffolding on the western boundary would not have any effect on the Oceana property.
[50]
[49] On 23 May 2025, the matter came on before Hindman J.[33] The following transpired in court:
[51]
(a) The Developer's barrister made submissions to the court that the scaffolding was light weight and would be needed to get to level 3.
(b) The scaffolding would only be on Oceana's land for eight weeks.
(c) It was difficult to see how the scaffolding would affect the basement but the Developer accepted that Oceana might need engineering evidence.
(d) There was prejudice to the Developer if the matter was delayed.
(e) There might be an alternative solution, but this was significantly more expensive.
[52]
[50] The injunction sought by the Developer against Oceana was refused, and the matter was listed for a two-day trial. The originating application and Oceana joinder application was otherwise adjourned to 29 May 2025. Hindman J noted the need for the Developer to amend its application.
[51] On 26 May 2025, there was an agreement reached as to the placement of a generator.
[52] On 27 May 2025, Oceana wrote to the Developer as to[34]:
[53]
(a) Noting that the scaffolding would be on Oceana's land for two weeks and would be two levels high.
(b) There may be an alternative solution.
(c) Urgently requesting drawings and information regarding this solution.
[54]
[53] On 28 May 2025, the Developer wrote to Oceana[35] alleging that Oceana had breached directions made by the court on 23 May 2025 and requested any proposal concerning the draft directions. Also, the Developer sent Oceana a copy of the proposed amended OA, seeking an indication whether consent would be granted. This application included removed interim access and expanded temporary access rights to allow scaffolding to be placed on Oceana's land, which included exclusive access to the TAA.
[54] On 28 May 2025, Oceana wrote to the Developer, noting[36]:
[55]
(a) Details of the proposed alternative engineering solution and drawings had not been provided. It noted that the drawings were needed to make an informed decision as to whether to call expert evidence.
(b) The proposed directions and trial plan did not include proceeding BS1104/25 (this proceeding).
(c) The directions as to BS954/25 were unrealistic.
[56]
[55] On 29 May 2025, the matter came on before Hindman J and leave was granted to file and serve the amended OA and the Developer should pay Oceana's costs thrown away. The Developer was ordered to file its material by 30 June 2025 and Oceana by 11 July 2025. Oceana's application for joinder was dismissed with the Developer to pay costs.[37]
[56] On 2 June 2025, Oceana served an affidavit of Mr Flynn (a surveyor) on the Developer.
[57] On 4 June 2025, Oceana wrote to the Developer, noting[38]:
[57]
(a) The amended OA had not been filed.
(b) The evidence did not support a basis to allow the scaffolding to touch the ground.
(c) The drawings provided did not fully outline the proposed arrangements as:
(i) The scaffolding proposed was a two-board wide system (737mm), yet the width of access sought was 200mm. The ground space was only 530mm. Therefore, the scaffolding would not fit in the space available.
(ii) No drawings had been provided outlining the proposed design, location and specifications.
(d) Further drawings were requested to allow Oceana's engineer to assess impact.
[58]
[58] On 9 June 2025 the Developer, in a letter to Oceana,[39] stated:
[59]
(a) The registry would not accept the amended OA as the order was not yet recorded.
(b) As to the possible alternative solution, the Developer confirmed it was investigating this and it was pointed out that no directions have been put in place regarding this. In fact, Oceana requested an extension of time to file expert evidence.
(c) It was not accepted that the footings would have any impact on the basement.
(d) Alleging that detailed information as to the scope and location of the scaffolding had been provided on 20 May 2025. The scaffolding was one board wide only.
(e) Oceana had since 14 April 2025 to obtain expert evidence. It had failed to put on evidence that the scaffolding would pose a risk to the basement.
(f) The scaffolding proposed was reasonably necessary. A cantilevered system was examined but there were disadvantages with this as it would cause unwarranted damage to the precast wall panels. This option did not allow the construction of the slab and planters above the stairs and would cost more than $50,000 for 52 weeks, as compared to $10,000.
(g) The Developer wanted to know what evidence Oceana relied on in asserting a real risk to the structural integrity of the basement, bearing in mind that Mr Cocks, in September 2024, stated the basement was in structurally good condition.
(h) The Developer requested advice as to whether Oceana would deliver expert evidence.
[60]
[59] On 10 June 2025, Oceana wrote to the Developer stating[40]:
[61]
(a) That the OA would be filed.
(b) Pointing out that the Developer's request for grant of access had changed.
(c) Claiming that the information as to the scaffolding was deficient and incomplete and that Oceana had repeatedly requested this information.
(d) That the drawings concerning the Western boundary scaffolding were incomplete.
(e) Enclosing an email from Mr Cocks requesting further documents and information. Mr Cocks noted that there were partial drawings in the first Quinn affidavit and some in the email of 20 May 2025. However, they did not show how the scaffolding can be installed in the space available and how it is intended to be supported. He needed a detailed section of how it was intended the scaffolding be installed. These drawings should form part of a typical set of scaffold drawings. Also, installation volumetrically or touching the ground presents significantly different loadings and risks to Oceana's property.
(f) Alleging there was a failure to properly articulate its proposal.
(g) Alleging that the Developer's claim that it would be one board wide was inconsistent with a drawing that refers to two boards wide.[41]
(h) Requesting a reconfirmation that the scaffolding was either one board wide or two boards wide and providing details of maximum width.
(i) Suggesting that it remained unclear as to whether the Developer intended to use the cantilevered scaffolding system.
(j) Asserting that $50,000 was an untrue assertion.
(k) Alleging there had been repeated changes to the Developer's position regarding the scaffolding and requesting confirmation it would be limited to two levels.
(l) Pointing out that Oceana was entitled to know precisely the full extent of any scaffolding to be installed on its land and to properly assess the risk of any damage.
(m) Pointing out that the body corporate was charged with an important statutory function and pointing out the various infringements of Oceana's proprietary rights by the Developer.
(n) Pointing out that the onus under s 180 of the PLA lay with the Developer.
[62]
[60] On 13 June 2025, the Developer wrote to Oceana stating[42]:
[63]
(a) It was under no obligation to provide a full set of the perimeter scaffolding drawings.[43]
(b) Despite the above, a link was enclosed to the full set of plans. The hyperlink only contained 29 pages of 309.
[64]
[61] On 18 June 2025, the Developer wrote to Oceana stating[44]:
[65]
(a) It did not understand why it had taken so long for Oceana to identify shortcomings in the scaffolding plans.[45]
(b) Requesting a copy of correspondence with Mr Cocks.
(c) Claiming that Oceana did not raise any dispute concerning the issue of scaffolding until an affidavit was served dated 23 May 2025.[46]
(d) At no point did Oceana seek any directions regarding an alternative solution.[47]
(e) That Oceana had failed to provide expert engineering evidence supporting the assertion that the scaffolding may have an adverse effect on the basement wall.[48]
(f) Oceana was in breach of orders.
(g) It was alleged that the height of the 'on-ground' scaffolding had never altered i.e. up to level 2.[49]
(h) It was alleged that the full scaffolding drawings had been provided early on 13 June 2025.[50]
(i) Further drawings were attached which "clearly explain the proposed on-ground scaffolding.[51]
(j) It repeated why the cantilevered solution was not appropriate.
(k) It said that the estimate of $50,000 for that solution was correct.
(l) It alleged that in reliance on 2040 Logan Road Pty Ltd v Body Corporate for Paddington Mews CTS 39149[52] not every detail of the application proposal was required in advance of the hearing of the application.
(m) It alleged that it had been made clear from the outset that on ground scaffolding would be required in the TAA on the western boundary.[53]
(n) That it was not possible to predict with precision all the development works that might occur within the TAA.
(o) That Oceana had steadfastly refused to substantiate the allegation that there may be an adverse impact on its basement and that Oceana had more than enough time to support that assertion.[54]
[66]
[62] On 20 June 2025, the Developer wrote to Oceana stating[55]:
[67]
(a) That it would settle the matter on the basis that the Developer be given temporary access rights; that it pay $15,000 for a licence fee and $5,000 plus GST for expenses and that each party bear its own costs.
(b) That the Developer did not accept that the footings of the scaffolding would have any impact on the basement, consistent with a review by an engineer, Mr Easingwood.[56]
(c) That the access rights be in the form of an easement to the exclusion of all others.[57]
[68]
[63] On 21 June 2025, Oceana wrote to the Developer stating[58]:
[69]
(a) That the Developer was ordered to file and serve its affidavits by 14 April 2025.
(b) Despite this, much supplementary information had been provided including:
(i) Various drawings.
(ii) The email dated 20 May 2025.
(iii) Advice (for the first time) on 9 June 2025 that the scaffolding would be only one board wide.
(iv) Opinions of an expert in the letter dated 20 June 2025.
(c) These supplemental facts were not in sworn material.
(d) It was unfair and unreasonable to expect Oceana to act on this unsworn evidence.
(e) The Developer should file its evidence in chief.
[70]
[64] On 30 June 2025, the Developer served a further affidavit of Mr Quinn (fourth Quinn affidavit) and an affidavit of Mr Easingwood.
[65] The affidavit of Mr Easingwood enclosed his expert report of the same date. The report noted:
[71]
(a) The calculated load per scaffold leg was 6.6kn, higher than that noted on the most recent scaffolding drawing (paragraph 23).
(b) The proposed scaffold is within the zone of influence of the basement car park retaining wall (paragraph 25).
(c) Other forms of temporary access are not feasible. The most practical, straight forward, and common method of providing low level construction access is the proposed scaffolding supported from ground level (paragraph 22).
(d) The calculated load placed on the ground surface on the western boundary is within the typical surcharge design allowance of 5kpa to 10kpa that should be accounted for in the design of a retaining structure (paragraph 26).
(e) As is noted in drawing 101, the leg load is approximately 600mm behind Oceana's retaining wall. This is within the zone of influence and will surcharge the basement carpark wall (paragraph 27).
(f) The existing garden planter boxes on the western boundary within Ocean's property would impose a greater surcharge load on the basement carpark than the scaffolding proposed (paragraph 30).
(g) Based on the visual inspection of the retaining wall, its current condition and the existing area of planter loads, the application of the scaffolding is not anticipated to overload or cause structural distress to the retaining wall. No structural damage is considered likely (paragraph 32).
(h) Such surcharge could be mitigated by spreader plates or hardwood timber on the ground beneath the scaffold legs (paragraph 35).
[72]
[66] The fourth Quinn affidavit noted the scaffolding in question would go to level 2 (paragraph17).
[67] On 1 July 2025, Oceana wrote to the Developer[59] seeking a copy of the documents referred to in Appendix A of the Easingwood affidavit (documents 51 to 55) and the instructions provided to him. The letter of instruction is dated 23 June 2025, some three months after the application was filed.
[68] Also on 1 July 2025, the Developer filed and served a valuer's affidavit from Mr Walker stating that compensation was in the range of $10,000 to $20,000, with a mid-range figure at $15,000 excluding GST.
[69] On 1 July 2025, Oceana in another letter to the Developer noted[60]:
[73]
(a) It had made numerous requests for working drawings that contained sufficient details of the scaffolding.
(b) The Developer refused to provide these. The drawings provided on 20 May 2025 and 13 June 2025 did not show any encroachment.
(c) That, to their surprise, drawings 101 and 102 in the Easingwood report showed an encroachment.[61] These were not the same drawings previously provided. [62]
(d) This issue would be brought to the attention of the court on the question of costs.
[74]
[70] On 3 July 2025, the Developer wrote to Oceana[63]:
[75]
(a) Making an offer of $20,000 for compensation and $10,000 for expenses, such offer expiring on 8 July 2025.
(b) Noting that there was no reasonable basis to refuse to grant access rights in light of the Easingwood report.
(c) Alleging that sufficient information had been provided since 13 June 2025.[64]
[76]
[71] On 7 July 2025, Oceana wrote to the Developer[65]:
[77]
(a) Noting that the 3 July offer was the first since filing the OA on 19 March 2025.
(b) Noting that the OA had changed in substance.
(c) Noting the continued failure of the Developer to provide drawings and information of the scaffolding proposal.
(d) Relevant information was withheld until 1 July 2025.
(e) Oceana had important statutory responsibilities.
(f) The creation of an easement would most likely be invalid as this is inconsistent with exclusive access. But this would not be opposed if the court thought this was appropriate.
(g) Some of the terms of access were vague.
(h) The offer of compensation and expenses was uncertain. Notwithstanding this, Oceana would agree on reasonable compensation fixed at $20,000.
(i) The offer of each party bearing their own costs was unjust bearing in mind the Developer's conduct of the matter.
(j) Enclosing a draft order agreeing to the right of access (a licence) but with an order the Developer pay Oceana's costs on an indemnity basis.
[78]
[72] On 8 July 2025, the Developer wrote to Oceana[66]:
[79]
(a) Rejecting the contention concerning the drawings.
(b) Drawings 101 and 102 were drawn on 26 June 2025 and issued to the Developer.[67]
(c) Alleging Mr Cocks had sufficient information as at 20 May 2025 to make the assessment.
[80]
[73] On 10 July 2025, the Developer further wrote to Oceana[68]:
[81]
(a) Generally accepting the changes proposed by Oceana as to access.
(b) Alleging there was no basis to pay Oceana's costs on either the standard or indemnity basis.
(c) Suggesting some minor amendments to the other construction activities; providing that Oceana would not grant any other person or entity right to access the TAA without the prior consent of the Developer and providing that Oceana would not prevent, restrict, or interfere with the Developer in the exercise of the access rights.
[82]
[74] On 17 July 2025, Oceana wrote to the Developer[69]:
[83]
(a) Pointing out that that a registered easement was not appropriate because of the exclusivity issue.
(b) Submitting that there was good reason for the Developer to pay indemnity costs as:
(i) The OA originally sought rights as to the IAA which was to forgive past trespasses. This was misconceived.
(ii) The proceedings concerning the TAA were unnecessarily delayed by the Developer as no proposal was ever put to Oceana; insufficient information was given to Oceana on which to get advice; proceedings were started without a proper basis and after all the necessary material was served the matter was agreed to.
(c) Offering to accept costs on the standard basis to avoid further costs.
[84]
[75] On 18 July 2025, Oceana made it clear that its offer was a Calderbank offer.[70]
[76] On 22 July 2025, the Developer wrote to Oceana criticizing Oceana's position on costs and the issue of the easement. Shortly afterwards, an email was sent annexing proposed orders abandoning the pursuit of a registered easement.[71]
[77] On 23 July 2025, Oceana wrote to the Developer noting[72]:
[85]
(a) This was the first time the Developer had abandoned the requirement for an easement.
(b) Some covenants were removed from the Terms of Access.
(c) Some conditions were also removed.
(d) As early as 7 July, Oceana had advised it would not oppose the making of a s 180 PLA order.
[86]
[78] The hearing commenced on 24 July 2025.
[79] In the afternoon of 24 July 2025, the court was informed that in advance of the order, the Developer had trespassed onto Oceana's land and erected the scaffolding. An affidavit of Mark Hayler was tendered which showed that the scaffolding had been erected on 22 July 2025.[73]
[87]
[80] The applicant submitted that the court should order a statutory right of user under s 180 of the PLA. It is submitted that a number of conditions should be imposed. It further submits that an order should be made that the applicant pay $10,000 plus GST for Oceana's legal costs in addition to the previous cost orders but otherwise each party should bear its own costs of the proceeding.
[81] It is further submitted that compensation in the sum of $20,000 should be ordered which is the subject of an agreement.
[82] It is submitted that:
[88]
(a) It is reasonably necessary that the right of user be imposed.
(b) It is in the public interest that the Developer's land should be used in the manner proposed.
(c) The respondent Oceana can be adequately compensated.
(d) Oceana has refused to agree to accept the imposition of the obligation and the refusal is unreasonable.
[89]
[83] It is submitted that the right of user is over a small piece of land comprising only 37.42m2; is limited to a license of 16 months and is supported by appropriate indemnity and insurance in the event of damage or personal injury.
[84] It is submitted the access will not negatively impact on Oceana's use of its land.
[85] It is submitted the use of the land is in accordance with the council approval and detailed development plans and is not inconsistent with the public interest. The compensation is adequate. The conditions are largely agreed.
[86] As to the issue of costs, it is submitted the proceedings were required to be commenced because Oceana had terminated the previous licence agreement between the parties. There is no basis for the contention that the Developer should pay costs or even indemnity costs. There was nothing unreasonable regarding the steps taken by the Developer to seek the statutory relief.
[87] It is submitted the Developer has not acted capriciously or unreasonably nor is there evidence of misconduct. The IAA issue is irrelevant.
[88] It is submitted that this case is to be contrasted with cases where there was no clarity of information. It was the Developer which incurred engineering fees here and that evidence is not disputed by Oceana.
[89] It is submitted the Developer has responded as soon as practicable to the concerns raised by Oceana, in particular any risk posed to Oceana's basement carpark. It has provided relevant drawings. Until the service of the relevant evidence, Oceana had not indicated it would agree to grant access.
[90] In those circumstances, the appropriate order is that each party should bear its own costs.
[90]
[91] The applicant submitted there was no basis for an indemnity costs order. It is submitted that it was Oceana which terminated the original licence agreement. The access rights were always there under that agreement and they could use that agreement to construct scaffolding. It was submitted that Mr Quinn's affidavit was clear as to the nature of the scaffolding. It was lightweight scaffolding up to the second level. The fact is Mr Yates did not trust the applicant and one can draw the conclusion that Oceana was not keen to cooperate.
[92] It is submitted that it was inevitable that access rights for the scaffolding would be provided. It should be borne in mind that the area is only 37.42 square meters, the licence is only for a period of 16 months and insurance and indemnities are to be provided.
[93] The development was always going to be close to the boundary and it would be concluded on the evidence that there was no engineering concern here. It is submitted that Oceana made the Developer jump through every hoop and if it had acted appropriately, it would have accepted the offer of $10,000 for costs. However, it was conceded by Mr O'Brien KC that there was a broad discretion on the court to make whatever costs order the court thought fit.
[94] It was also conceded that the Easingwood report was served on 30 June 2025. It was obvious there were no concerns once that report was served.
[95] It was only on 20 May 2025 that Oceana raised the possibility that the basement might be an issue. It should be borne in mind that the application was filed on 19 March 2025. There is no doubt that a s 180 order involves an infringement of property rights but in the modern world it must be accepted that this can occur.
[96] As to the IAA, that has already been debated and a costs order was made.
[97] Mr O'Brien KC heavily relied on the first Quinn affidavit dated 14 April 2025 which he says provided details of the scaffolding. It was submitted that Oceana knew of the details from the plans and the lightweight nature of the scaffolding. If there was a concern it should have been raised at that stage.
[98] Mr O'Brien KC pointed out the fact there was commercial urgency with respect to the access rights and yet Oceana delayed the matter considerably. It engaged an engineer first on 6 May 2025, three weeks after the first Quinn affidavit.
[91]
[106] Oceana submits that the proceedings were largely unnecessary. It submits that the Developer finally put forward a reasonable negotiation proposal to enable the development to proceed. The only remaining substantial question is one of costs.
[107] It is submitted that Oceana has a right to use and enjoy its common property. It is submitted that the Developer always had the burden of putting forward a proposal that was reasonable to enable its adjoining development to be constructed.
[108] It is submitted that the Developer has a history of demonstrating a sense of entitlement concerning its development.
[109] It is submitted here that the conduct of the Developer should be reflected in an order for indemnity costs. It is alleged the Developer began proceedings without a proper basis and without prior notice to Oceana. It submits that it unnecessarily prolonged the case, and it refuses to pay Oceana any costs without providing good reason. The Developer points to the history of the matter.
[110] It submits that Oceana has not acted unreasonably and once the Developer abandoned unnecessary relief and provided Oceana with relevant information, Oceana made it clear it did not oppose the substantive relief sought.
[111] It notes that s 180(6) of the PLA provides that the court shall not, except in special circumstances, make an order for costs against the servient owner. Oceana relies on the statements made in Colgate-Palmolive Co v Cussons Pty Ltd[74].
[112] It submits that the Developer offers no explanation for why it initiated proceedings and made no attempt to prepare or present any proposal to Oceana before commencing the litigation. Oceana submits that the Developer paid insufficient attention to its affidavit material and altered its case fundamentally 10 weeks after it was commenced and waited for Oceana to obtain valuation evidence and a preliminary engineering opinion.
[113] It is submitted that Oceana was the driving force behind the hearing of the substantive relief ultimately becoming unnecessary. Oceana has incurred unreasonable and unnecessary costs. It is the Developer that seeks to interfere with Oceana's proprietary rights which is significant.
[92]
[115] Mr Handran KC stressed the importance of the rights of an owner of land and the importance of body corporate rights. The Developer always knew that the use of this land was a sensitive issue because there was a shoring structure supporting the basement wall.
[116] The fact is that in September 2024 the Developer trespassed on the body corporate's land which led to proceedings and the granting of an injunction. The licence agreement was negotiated in mid-October 2024.
[117] It was pointed out that the scaffolding is not lightweight but light duty, and it is also pointed out that the drawing noted that there needed to be an engineering report and the Developer did not have that from the start. There was pushback from the Developer when the engineering issue was raised.
[118] Indeed, Mills Oakley on behalf of the Developer claimed it was difficult to see why expert evidence was warranted.
[119] Mr Handran KC also pointed out that in the first Quinn affidavit there was reference to the scaffolding being six levels high, which evidence he later corrected. Height is relevant to both weight and compensation.
[120] Contrary to the Developer's submissions, Oceana says there was a willingness to work here, for example there was an agreement concerning the airspace and there was the undertaking given in April 2025. It was noted that consent was never sought for the scaffolding to be put in place. There was no attempt by the Developer to negotiate here before going to court.
[121] It is also noteworthy that the first Quinn affidavit was served a month after the court proceedings were filed. It may clearly be inferred that the Developer did not treat this as an urgent matter. The engineering evidence was not provided until the end of June 2025. It was pointed out that the originating application in its original form was defective.
[122] As soon as the engineering report was provided, Oceana responded quickly with an offer on 7 July 2025. It took the Developer three and half months to get its case in order. The engineering concerns of Oceana were reasonable and needed to be considered prior to the erection of the scaffolding. It is submitted there was a disregard by the Developer of Oceana's rights and it was pointed out that the scaffolding had already been erected the day before this particular hearing, which constitutes contumelious disregard of Oceana's rights.
[93]
[142] Mr O'Brien KC submitted that the scaffolding had minimal impact on Oceana's land and Oceana did not need to file expert evidence. It was submitted it was the Developer who incurred the additional costs because of Oceana's conduct. It was submitted that it was obvious that the scaffolding was also going to go up on the land. It was argued that it was clear from the first Quinn affidavit that this scaffolding was to level two. Mr O'Brien pointed out that the drawings at page 44 showed it was light duty and submitted that the markings on page 55 showed where it was going to go. It was submitted that the application was always going to succeed because there were clear grounds for it. Sufficient plans were provided to Oceana to make an informed decision.
"180 Imposition of statutory rights of user in respect of land
[96]
(1) Where it is reasonably necessary in the interests of effective use in any reasonable manner of any land (the dominant land) that such land, or the owner for the time being of such land, should in respect of any other land (the servient land) have a statutory right of user in respect of that other land, the court may, on the application of the owner of the dominant land but subject to this section, impose upon the servient land, or upon the owner for the time being of such land, an obligation of user or an obligation to permit such user in accordance with that order.
[97]
(2) A statutory right of user imposed under subsection (1) may take the form of an easement, licence or otherwise, and may be declared to be exercisable -
[98]
(a) by such persons, their servants and agents, in such number, and in such manner and subject to such conditions; and
[99]
(d) in perpetuity or for some fixed period; as may be specified in the order.
[100]
(3) An order of the kind referred to in subsection (1) shall not be made unless the court is satisfied that -
[101]
(a) it is consistent with the public interest that the dominant land should be used in the manner proposed; and
(b) the owner of the servient land can be adequately recompensed in money for any loss or disadvantage which the owner may suffer from the imposition of the obligation; and
[102]
(i) the owner of the servient land has refused to agree to accept the imposition of such obligation and the owner's refusal is in all the circumstances unreasonable; or
[103]
(ii) no person can be found who possesses the necessary capacity to agree to accept the imposition of such obligation.
[104]
(4) An order under this section (including an order under this subsection) -
[105]
(a) shall, except in special circumstances, include provision for payment by the applicant to such person or persons as may be specified in the order of such amount by way of compensation or consideration as in the circumstances appears to the court to be just; and
(b) may include such other terms and conditions as may be just; and
(c) shall, unless the court otherwise orders, be registered as provided in this section; and
(d) may on the application of the owner of the servient tenement or of the dominant tenement be modified or extinguished by order of the court where it is satisfied that -
(i) the statutory right of user, or some aspect of it, is no longer reasonably necessary in the interests of effective use of the dominant land; or
(ii) some material change in the circumstances has taken place since the order imposing the statutory right of user was made; and (e) shall when registered as provided in this section be binding on all persons, whether of full age or capacity or not, then entitled or afterwards becoming entitled to the servient land or the dominant land, whether or not such persons are parties to proceedings or have been served with notice or not.
[106]
(a) direct a survey to be made of any land and a plan of survey to be prepared; and
(b) order any person to execute any instrument or instruments in registrable or other form necessary for giving effect to an order made under this section; and
(c) order any person to produce to any person specified in the order any title deed or other instrument or document relating to any land; and
[107]
(d) give directions for the conduct of proceedings; and
[108]
(e) make orders in respect of the costs of any of the preceding matters and of proceedings generally.
[109]
(6) In any proceedings under this section the court shall not, except in special circumstances, make an order for costs against the servient owner.
[110]
owner includes any person interested whether presently, contingently or otherwise in land.
[111]
statutory right of user includes any right of, or in the nature of, a right of way over, or of access to, or of entry upon land and any right to carry and place any utility upon, over, across, through, under or into land.
[112]
utility includes any electricity, gas, power, telephone, water, drainage, sewerage and other service pipes or lines, together with all facilities and structures reasonably incidental to the utility.
[113]
[144] This section confers a discretion on the court to make orders in favour of the dominant landowner where it is reasonably necessary in the interests of the effect of use in any reasonable manner. Where such an order is made, the subsequent statutory right of user burdens the other land (the servient land) and, unless the court otherwise orders, is registered on the title. The applicant bears the onus of satisfying the court of the matters to be established.
"Section 180 seeks to balance competing interests of landowners, where one party refuses to consent to something to which they ought to consent, and their refusal to do so prevents the effective use by the other party of the other party's land. The section empowers the court to resolve this issue by diminishing the property rights of the servient landowner insofar as the statutory right of user applies. It permits the court to alter the property rights of servient landowners against their will."
[115]
[146] It was said that to justify the imposition of a statutory right of user the case in favour of the applicant should be clear and persuasive and the case must establish the conditions for the making of an order with an equal degree of clarity.[81] Also, one should not interfere readily with the propriety rights of an owner of land.[82]
[147] In 2040 Logan Road Pty Ltd v Body Corporate for Paddington Mews CTS 39149[83] it was said that s 180 is a remedial provision offering considerable flexibility to grant a statutory right of user in such terms as may be just, but the court's power is not just there for the asking. The power will only be exercised in favour of an applicant where what is proposed is reasonably necessary in the interests of the effective use in any reasonable manner of the applicant's land and where the court is satisfied about the existence of each of the preconditions in the section.[84] Burns J also noted that whilst every detail of the proposal need not be worked out in advance of the hearing, matters of substance do need to be satisfactorily defined and established by the evidence.[85] If there are substantial gaps in the details it may be that an order is not made.[86]
[148] It is true that McMurdo J said in Pacific Coast Investments Pty Ltd v Gem Ann Cowlishaw[87] that the preconditions of s 180 of the PLA do not have to exist when the proceedings have commenced. On the other hand, McMeekin J in _Naylor & Anor v Pierce & Anor[88]_said that the onus is on the applicant to put forward a proposal that would be unreasonable for the respondent to refuse.
[149] In my view, it would be usual for a proposal to have been made before the proceedings so that the refusal element may be established, and it is to be expected that some material might be filed with the application.[89]
[116]
(a) Costs orders are not made to punish an unsuccessful party but there may be some circumstances revealing a "delinquency" on the part of the unsuccessful party leading to a costs order on an indemnity basis which more adequately compensates the successful party.[93]
(b) The categories in which indemnity costs orders are made are not closed but there needs to be some unusual or special feature of the case justifying the order, including prolongation of a case by groundless contentions or the imprudent refusal of an offer of compromise.[94]
(c) The award of indemnity costs should not be too readily available.[95]
(d) The ordinary rule is that costs be ordered on a party/party basis however there can be cases where the court will depart from this rule.[96]
(e) The question is exercised having regard to the relevant principles and the particular circumstances of the case.[97]
[117]
[157] The Developer relied on the case of Enhance Property Investments No 3 v Pier Traders Pty Ltd.[98] However, I think that case is different to the present one as in that case Her Honour did not find that the conduct (either way) was unreasonable. As to the other cases relied on by the Developer[99], each case depends on its own facts.
[158] When I consider the submissions made and the material as a whole, I form the view that the Developer's position has not been reasonable here and/or involves some blameworthy conduct such that an award of indemnity costs should be made.
[159] I find on the balance of probabilities as follows:
[118]
(a) The onus at all material times was on the Developer to prove the requirements of s 180 PLA, not Oceana. It had a duty to put forward sufficiently precise detail of the proposal at the application stage.
(b) Oceana had an important statutory obligation to protect its common areas on behalf of the lot owners.[100] Also, a person (or body corporate[101]) is entitled to own land free from trespass by others.[102]
(c) The lot owners' rights as to the common property are paramount.[103]
(d) The Developer has a history of trespass which led to the granting of an injunction in late 2024. There seems to be an arguable case that it breached the license agreement.
(e) In light of the size of the block, the Developer would have been aware of the need to access the land for scaffolding.
(f) The drawings showed the need for engineering certification. The Developer should have obtained this.[104]
(g) The application was filed on 19 March 2025 without any prior proposal being put to Oceana, particularly in the letter dated 12 March 2025.
(h) There was no supporting affidavit material filed with the application which would have enabled Oceana to resolve the case earlier.
(i) The OA was wrong. It claimed that the scaffolding was to be on the development land and inappropriately claimed relief with respect to the IAA. The Developer refused to amend this until the court intimated this on 23 May 2025.
(j) The Developer delayed the matter. The first affidavit of Mr Quinn was not filed until 14 April 2025 and did not contain the full scaffolding drawings and claimed that it would go up to floor 6 at that point.[105] I do not think the drawings provided at that stage sufficiently identified the degree of encroachment from the scaffolding.[106]
(k) The Developer failed to engage an engineer. It was Oceana which first did in mid-May 2025 and in my view, Mr Cocks validly raised concerns about the potential effect on the basement carpark. Even if that did not turn out to be correct, it was a valid concern at the time which even the Developer accepted. If the scaffolding did affect the integrity of the basement wall there could have been very expensive consequences.
[119]
[160] Also relevant is the fact that an offer of standard costs was made, but despite this, the Developer proceeded with the application asking for an order that it only pay $10,000 plus GST. This was altered to 50% of standard costs during argument.
[161] In my view the offer by Oceana should have been accepted.
[120]
[162] In all of the circumstances, in the exercise of my discretion I make the following order:
I order the applicant pay the respondent's costs of and incidental to the application on an indemnity basis.
[62] This is a correct assertion- see documents attached to letter dated 13 June 2025. These contain pages 461 and 462 which show no encroachment. Pages 503, 504 and 504 later provided show the encroachment - see exhibit 8.
[142]
[64] This impliedly acknowledges that it was not provided in the period 13 March 2025 until 13 June 2025.
[143]
[67] This begs the question- why were they not done in March 2025 prior to the application.
[89]Rule 26(4) requires the application to specify the affidavits to be relied on and under rule 28 the affidavits relied on must be served at least three days before the hearing unless the court gives leave.
[17] Oceana commenced proceedings for an injunction and damages for breach of the licence agreement and trespass on 13 March 2025.
[29] At 4:36pm, the Developer replied stating the material would be provided "shortly" and it did not intend to amend the OA.
[30] At 4:49pm, Oceana noted that it was over 3 weeks since the filing of the application and the supporting material had not been filed. It would take time to consider any material and it was suggested that both applications be adjourned to enable service of the material.
[31] On 11 April 2025, Williams J made consent orders that the Developer file its material by 14 April 2025 and Oceana's application be adjourned until 19 May 2025. The OA was adjourned until 17 April 2025.[16]
[32] On 14 April 2025, the affidavit of Mr Quinn (first Quinn affidavit) was served by the Developer with a proposed draft order.[17]
[33] Mr Quinn deposed to the following:
[99] It is submitted there was clearly no risk and no obvious impact on Oceana's land. Mr O'Brien KC relied on the second Quinn affidavit dated 19 May 2025 concerning the urgency and the cost involved. The issue of the basement was first raised on 20 May 2025.
[100] The matter came before Hindman J on 23 May 2025 at which stage it was determined that an engineer would need to consider the matter. It is submitted that Oceana prolonged the litigation and if there had been a cooperative approach this would not have happened. The fourth Quinn affidavit was served on 10 June 2025 and Mr Easingwood's on 30 June 2025. It should be noted that Oceana never filed any expert evidence on the point.
[101] Mr O'Brien KC pointed out that, with respect to the first offer to resolve the matter on 7 July 2025, Oceana insisted on indemnity costs and that became the primary issue throughout. On 17 July 2025, it alternatively asked for standard costs which is the day after the written submissions.
[102] With respect to the respondent's submissions, Mr O'Brien KC submitted there was no special or unusual feature of this case warranting indemnity costs. It is submitted that Oceana knew of the commercial imperative here and it is not right that plans were not provided. It is untrue to say that proceedings were started without regard to the statutory power.
[103] The proceedings were brought to obtain an order and an order has been obtained. Oceana made no attempt to provide a proposal, bearing in mind the urgency of the matter. The reason for this is because Mr Yates did not trust the Developer and in fact this led to a termination of a licence agreement which inevitably led to the bringing of proceedings on 19 March 2025.
[104] After the delivery of the first Quinn affidavit, Oceana had sufficient material to get advice, bearing in mind this was light duty scaffolding.
[105] It is submitted that Oceana acted unreasonably bearing in mind the urgency and its lack of cooperation. The case has never fundamentally changed. It was always about scaffolding. The Developer did not unduly prolong this case.
[114] In the circumstances, an indemnity costs order is appropriate, or alternatively, the Developer should pay the costs on the standard basis.
[123] In this regard, the terms of access arrangements have not been complied with. There is a history of breaches by the Developer and disregard of the court process which is relevant to the costs issue.
[124] It was pointed out that as at 12 March 2025, the letter from the Developer showed what their attitude was and never referred to the scaffolding at that point, and did not seek consent.
[125] It was also pointed out that in the OA the use of the scaffolding was for a period of 17 months with only $5,000 for compensation and $5,000 for costs in the absence of any evidence. Also, the Developer bought an application to summarily dismiss the trespass application, which proceedings were stayed by the Chief Justice.
[126] The first Quinn affidavit referred to six storeys and the requirement for engineering certification. It was also pointed out it was not for Oceana to prove anything; it was for the Developer to prove that Oceana acted unreasonably.
[127] Mr Handran KC submitted that the evidence of the Developer trespassing on the land the day before was consistent with its past behaviour.[75] The certificates of insurance were incomplete and there was no engineering certification.
[128] Mr Handran KC took the court through the material contained in Exhibit 5. He submitted the application before Chief Justice Bowskill was groundless. He also submitted that the plans which were provided on 20 May 2025 did not show the incursion onto the Oceana's property.
[129] He referred to Mr Cock's letter dated 20 May 2025 and said that these raised real concerns as to the effect of the encroachment on the basement. The matter before Hindman J on 23 May 2025 related to an alleged trespass by the surveyor and Mr Bray. The interlocutory injunction sought by the Developer was dismissed. The trial listing was made soon thereafter. He submitted that her Honour described the alleged trespasses as trivial.
[130] Mr Handran KC relied on the correspondence by Mr Frigo on 27 May 2025, seeking the drawings and details of the proposal. Ultimately, the OA was amended on 28 May, but it still sought exclusive access for an easement which was impermissible. It now sought to place the scaffolding in the TAA.
[131] On 4 June 2025, Oceana's solicitors correctly raised issues concerning whether the boards would fit within the space available, a genuine concern. On 13 June a hyperlink was sent containing drawings, but only 29 pages of 309 pages were made available.
[132] It was noteworthy that of the drawings that were disclosed, they had been issued on a preliminary basis in 2024 and issued for construction on 17 March 2025. It was submitted by Mr Handran KC that the Developer knew the full details early on.
[133] The drawings which were provided[76] did not make it clear as to the extent of the encroachment onto the TAA. It was reasonable for Oceana to know exactly where the scaffolding was going. It needed this information to make an informed decision.
[134] Mr Handran KC also pointed out that it was not for Oceana to provide the engineering evidence, that was for the Developer. It was submitted that insufficient material as to the substance of the application was given to Oceana to make a proper decision.
[135] Ultimately, when the fourth Quinn affidavit was provided dated 30 June 2025, the drawings[77] showed for the first time the extent of the encroachment onto the TAA. It also provided some details concerning the load.
[136] It was after this that Oceana was able to take instructions and make an offer. It was noted that the Developer made an offer on 20 June 2025 of $15,000 compensation with each party bearing their own costs. But at that stage there was no report from Mr Easingwood, as was pointed out by Oceana on 21 June 2025
[137] The report of Ms Easingwood was served on the 30 June 2025 at 6.25pm. After that, the Developer made an offer of only $15,000 and $10,000 in costs on 3 July 2025. The offer by Oceana on 7 July 2025 was not conditional on the payment of indemnity costs. Mr Handran KC took the court through the other correspondence.
[138] Mr Handran KC said that this case was similar to that in M Salazar Properties Pty Ltd v Jeffs[78] in that intimidating and bullying correspondence was involved. It was submitted that Oceana should fully be compensated for what happened in this case because the conduct of the Developer was not reasonable. It was submitted that there is a need for clarity when one makes these applications which was absent here.
[139] It was submitted that there was delinquent behaviour on the part of the Developer. It was the Developer's conduct which led to the cost and delay here. Oceana did not contribute to this, and the matter could not have resolved earlier than when the engineering report from Mr Easingwood was provided.
[140] It is submitted that the proceedings were started with scant regard to the requirements of s 180 of the PLA. The solicitors for the body corporate did their job. The delay here was because of the late provision of accurate drawings and the Easingwood report.
[141] Despite the claims of Mr Quinn in his affidavits, there was no real urgency on the part of the Developer. The body corporate did not act unreasonably. The drawings ultimately provided were inconsistent with their material and the Developer's case changed. It was submitted that in reliance on LSC v Bone[79], indemnity costs are not limited to cases involving delinquency.
[150] On the issue of compensation, the court needs to put itself into the position of reasonable persons negotiating for that right, trying their best to establish the amount of the consideration that would compensate the owner of the land in question for any loss or disadvantage it might suffer by the trespass.[90] Other factors would include loss of rental income, loss of amenity and diminution in value of the servient property, particularly if it is a permanent easement. Compensation must reflect the loss or disadvantage from the imposition of the obligation and needs to take into account whether the burden is temporary and significant or permanent and more onerous.
[151] On the evidence, there is no reasonable alternative to the use of the perimeter scaffolding. Other options have been investigated but had been found to be impracticable or excessively expensive.
[152] In my opinion the erection and use of the lightweight scaffolding within the TAA is the only effective and efficient means by which the works required by council approval can be carried out along the southern and western boundaries. In light of the agreement reached between the parties, I exercised my discretion to make the order sought. I was satisfied on all of the evidence that the temporary access rights and scope of the access meet the requirements of s 180 of PLA, with appropriate terms and conditions.
[153] On the issue of compensation, the parties have agreed on the sum of $20,000 which I find is supported by the evidence.
[154] The remaining question relates to the issue of costs.
[155] The starting point is that an order for costs should not be made against the servient tenement under s 180(6) of the PLA. In Body Corporate of Torwood Hill Resident's Retreat v Fittell[91], Davis J said that the starting point was the respondent ought to recover costs on the standard basis as she had legitimate interests to defend and spent money defending those interests. I consider that, subject to s 180(6), costs are in the discretion of the court which is a wide one.[92]
[156] On the issue of indemnity costs, the following propositions may be discerned from the cases:
(l) One can perfectly understand the fact that Oceana had concerns when the details of the scaffolding had not been provided and it was to be placed on the ground not far from the retaining wall of the carpark over which Oceana had an important statutory responsibility.
(m) The Developer seemed to misunderstand the onus of proof. The onus was not on Oceana to establish that it had valid concerns. It was the Developer which needed to establish there was a need to alter fundamental property rights.
(n) The Developer did not file its expert material until 30 June 2025, some three months after the commencement of the proceedings, which tells somewhat against urgency. Oceana, by that time, had no doubt incurred considerable costs. The Developer did not respond to Oceana's concerns in a timely way.
(o) I find that the Developer did not disclose the full scaffolding drawings to Oceana until after 18 June 2025. This was some three months after the filing of the OA. Also, Oceana was not able to fully assess the drawings and obtain engineering advice until after the affidavit of Mr Easingwood was delivered.
(p) I find that Oceana acted reasonably in requesting the scaffolding information in light of its reasonable concerns as to the effect of the scaffolding on the basement.
(q) Also, a matter which is relevant to tipping the balance is that the Developer acted in contumelious disregard of Oceana's rights in erecting the scaffolding prior to the court order.