BEN-PELECH -v- ROYLE [2019] WASC 297 (16 August 2019)

BEN-PELECH -v- ROYLE [2019] WASC 297 (16 August 2019) - WASC 2019 case summary — Zoe

[11]

Despite their sandy nature, the soils in the Perth coastal suburb of City Beach have managed to provide a fertile ground for this dispute arising between suburban neighbours. This trial showcases what, in essence, is a boundary dispute between the neighbours over a narrow at best (yet contested) 27 sqm rectangular strip of border land lying between the neighbours' respective lots (the disputed area).
The disputing parties have been neighbouring residential land (lot) owners in Hesperia Avenue, City Beach since 1993. Mr and Mrs Ben‑Pelech, who are the plaintiffs, acquired lot 238 in 1993 but which, as a result of subdivision activities I will discuss later, is now lot 200. Mr and Mrs Royle, the first and second defendants, own lot 239. In these reasons I will, with no disrespect intended, refer at times to the parties as the Ben-Pelechs and the Royles.
Given the relief sought by the plaintiffs, the Registrar of Titles (the Registrar) is the third defendant to the proceedings. However, as is customary, the Registrar submitted, in effect, a notice to abide on terms the decision of the court. As such, the Registrar took no further part in the proceedings. Therefore, when referring to the 'defendants' in these reasons, I only refer to the Royles, without the Registrar.
A sizable proportion of the disputed area lies on the defendants' side of the timber framed fence that was erected between the two adjoining lots in early 1994. I refer to this fence as the 'replacement fence'. The position of the fence has not altered since early 1994. The replacement fence ran from the rear adjoining corners of lots 238 (now lot 200) and 239 down to a point two‑thirds of the way along the boundary - ending at a side gate. When closed, the side gate effectively shuts off the rear area of lot 239, at a point between the residential dwelling's wall on the north side of lot 239 and the replacement fence. I refer to this section of the disputed area as the 'rear area'. The remaining portion (roughly a third) of the border as between these adjoining lots proceeding towards their road verges with Hesperia Avenue is not and has not been fenced. I refer to this section of the disputed area as the 'front area'.
A view of the replacement fence can be seen from the below photo taken in February 2018 (affidavit of Rosemary Anne Royle sworn 14 February 2019, page 36, RR6). This photo shows the replacement fence as seen when standing on lot 238 looking westward towards lot 239:

[13]

In this action, the plaintiffs seek a declaration that the boundary between the two adjoining lots conform to that on the certificates of title. They seek permission from the court to, first, tear down the replacement fence and, second, to erect a new fence (including retaining walls) on the correct boundary line separating the two adjoining lots.
The defendants resist this relief. Further to that resistance, by their counterclaim, the defendants now claim to enjoy a promissory title over the disputed area, by way of adverse possession. This claim is based on their asserted continuous use and possession of the disputed area since early 1994 to the time when the misalignment of the replacement fence was recently discovered.
The misalignment of the replacement fence was realised during mid‑2017. This was when broader subdivisional activities were then being pursued by the plaintiffs, across lot 238 but also over some other adjoining properties which they had acquired after 1993. During these subdivisional pursuits the misalignment of the replacement fence came to everyone's attention.
Needless to say, the parties have been unable to resolve their boundary dispute consensually.
To resolve the various trial issues I need first to determine, other things being equal, whether the defendants can make good their claim for an acquired promissory title over the disputed area by way of adverse possession. As I later explain, an affirmative finding of adverse possession in favour of the defendants would extinguish the plaintiffs' title to facilitate the defendants' recognition as the owners of any part(s) of the disputed area assessed to have been adversely possessed by them.
Although the plaintiffs generally challenge the defendants' claim to adverse possession, they go further to advance two further and alternate arguments under the Transfer of Land Act 1983 (WA) (TLA) and Property Law Act 1969 (WA) (PLA), which they put against any potential affirmative finding of adverse possession favouring the defendants. I examine these two unique resistance arguments of the plaintiffs in the subsequent parts of these reasons.
Before I turn to some further background underlying this dispute, I should briefly outline the body of evidence put before the court at the trial.

[25]

When Mrs Freeth sold off her lot 238 to the Ben‑Pelechs (and their son) and her lot 239 to the Royles in March and April 1993 respectively, she had made both purchaser parties fully aware that there was a problem with the erected position of the then existing boundary fence erected between those two lots. I refer to the boundary fence that had existed in 1993, at the time the lots were acquired, as 'the old fence'. The old fence had been built in (slightly) the wrong position. It had been erected entirely within the bounds of lot 238, rather than on the correct border position of the dividing boundary line between lots 238 and 239.
An incorrect positioning of the old fence had not been a practical problem for Mrs Freeth - as the common owner of both lots up to 1993. At the time the adjoining lots were sold off there was also a gazebo built at the rear of the two lots (on the higher rear ground). The gazebo had straddled the boundary between the two adjoining lots. The gazebo can be seen marked on the diagram at [26]. The issue regarding the gazebo was also disclosed to the purchasing parties at that time.
Due to the misalignment of the old fence and a problematic positioning of the gazebo, plus the fact that the bore on lot 239 had linked pipes reticulating both of the adjoining lots at that time, the real estate agent then acting for Mrs Freeth had properly made the prospective purchasers aware of these boundary issues. The offer and acceptance purchase contracts signed by the Ben-Pelechs and the Royles each displayed special conditions, rendering it explicit to those purchasers that they were on notice of the boundary issues and were specifically excluded from complaining about them in the future towards their common vendor, Mrs Freeth. (See the affidavit of Boaz Ben‑Pelech sworn 27 November 2018, annexures BBP1 and BBP3 (exhibit 1.1)).
Mrs Freeth had also reserved the right, under the offer and acceptance special conditions, as against both new purchasers, to replace the misaligned old fence before settlement on each sale. But notwithstanding that special condition, she did not. As things turned out, Mrs Freeth simply left it to the new purchasers to sort out as between themselves the boundary issues arising out of the misalignment of the old fence between the two lots.
None of the problems disclosed in 1993 deterred either the Ben-Pelechs or the Royles from proceeding to purchase lots 238 and 239, respectively. Settlements duly proceeded. Essentially, the Ben‑Pelechs and the Royles became neighbours, from April 1993. It then took a further six months or so after settlement before the sitting tenants who had been occupying the house on lot 238 moved out, to enable Sharon to then take up personal residence there.

[44]

At a point prior to settlement on the acquisition of lot 239 by the Royles, Mrs Freeth's real estate agent provided to the Royles (but not, it would seem, to the Ben‑Pelechs), a copy of her surveyor's report and diagram, prepared in 1992 for Mrs Freeth by licensed surveyors Sorenson Short & Associates. The diagram showed the results of a survey as had been undertaken by Sorenson Short & Associates on 26 October 1992 - showing the true boundary position between lots 238 and 239 ('the Sorenson survey diagram'). The Sorenson survey diagram may be seen at [26] of these reasons.
The Sorenson survey diagram showed at the Hesperia Avenue frontage end of the boundary the positioning of a surveyor's corner peg at the intersecting front corner of the two adjoining lots ('the front corner survey peg'). The survey diagram showed the position of that peg being placed some 7.56 m westward of another peg which, as regards the frontage of lot 238, depicted a slight 'bend' or 'kink' in the frontage boundary line of lot 238 at its road verge frontage with Hesperia Avenue ('the kink point survey peg').
It came to light in about mid‑2017 that the front corner survey peg, albeit shown on the Sorenson survey diagram as being located 7.56 m to the west of the kink point survey peg on lot 238, in fact, had been wrongly placed by the surveyor (in 1992) at only 7.03 m to the west of the kink point survey peg (ie, a placement error of some 0.53 m -resulting in too little frontage width for lot 238 and a corresponding increase for lot 239).
Hence, although the 1992 Sorenson survey diagram presents on paper as being correctly drawn, the actual physical placement of the front corner survey peg, in attempting to show and mark the corner point dividing the Hesperia Avenue frontage boundary between the two adjoining lots, was actually placed in error by some 0.53 m at some time around October 1992.
Mrs Royle, by her affidavit, says that in 1993 Mrs Freeth's real estate agent had visually pointed out to Mr Royle and herself, the in situ position of these frontage survey pegs at the time.
Mrs Royle explained in her affidavit, at pars 39 and 40 (and I accept):

[77]

I can now draw some conclusions concerning the front area, as also claimed to be adversely possessed by the defendants.
It is apparent that the replacement fence that has separated the two adjoining lots since early 1994 does not and did not ever extend all the way to reach the Hesperia Avenue road verge. It terminated at a point about two‑thirds of the way, at a place near the attached side gate, hung between the replacement fence and the north‑eastern wall at about halfway along the eastern side dwelling house wall on lot 239.
Beyond the gate there was and is no dividing fence ever erected over what was basically left as an open garden frontage space area. There was at times sand, mowed lawn grass and at later times a garden bed that looked to be cultivated in the open area as from about the time the (five) olive trees were planted at the time of renovations to the defendants' dwelling house around 1998.
The line of the trunks of the olive trees planted in this area presents as having been planted by the defendants at places at about 0.5 of a metre inside of (ie, towards the defendants' lot 239) an imagined straight line extending the line of the replacement fence down to the Hesperia Avenue road verge.
That alignment is well illustrated by the photograph found in the affidavit of Mr Royle at page 52 (and included at [44] above), which shows a view of the front area seen looking down towards Hesperia Avenue.
Nevertheless, this front area was never enclosed, unlike for the rear area. The line drawn between the olive trees' vertical trunks looks roughly to see them growing at a point about a half a metre to the west (ie, ocean side) on the Royles' lot 239 side of an imagined extension of a straight line drawn from the end of the replacement fence running down to Hesperia Avenue - visualised as extending beyond the gate down to the Hesperia Avenue road verge.
By contrast to the affirmative position I earlier ascertained as regards my finding of adverse possession as firmly established for the rear area, I am unable to reach the same conclusion in relation to this unenclosed front area. Had, say, an (imagined) line of the five olive trees' vertical trunks shown them as being planted on the same alignment as an extended line of the replacement fence, then my adverse possession assessment task may have been made more difficult. But the Royles' olive trees were planted well inside (by about 0.5 m) that imagined line of the replacement fence, within lot 239. The open nature of the front area connecting, as it does, to a partly grassed section of open road verge on both sides of two adjoining lots, before the kerb and bitumen of Hesperia Avenue, leads me to my end view that the defendants' claim over the front area does not demonstrate the same high level evidencing proof of adverse and exclusive continuous use at the front as for the enclosed rear area.
In advancing their arguments towards adverse possession over the front area, the defendants helpfully collected all the evidence factually relied upon in a table of evidence - handed up during the course of argument. For convenience purposes, I will identify the first and second defendants' table of evidence relating to their asserted acts of adverse possession and damage/reduced amenity as MFI 1. The first part of that table identified some 13 components as asserted evidence of use and possession of front area by the defendants, in reference to various pages of the two volume TB (mostly photographs). There were further references to statements in the affidavits by the defendants to the effect that they had watered, tended, mulched, mowed, edged and generally maintained the front area. They also say that they altered the reticulation, replanted gardens and planted olive trees in this area. As I already outlined, they refer to regularly using the dirt path when passing back and forth between the front and rear areas of lot 239.
I have weighed and assessed all this evidence. Nevertheless, in my view, it is simply not persuasive enough to show the convincing evidence of exclusive use. For adverse possession, the standard to be met is high - to establish clear and unequivocal adverse possession. This front area is an unfenced, essentially open area joining to the open road verge of Hesperia Avenue on both sides of each lot. Critically, the line of the planted olive trees, on my assessment, is not an extension of an imaginary line extending the line of the replacement fence down to Hesperia Avenue. The plans and surveys to which I have now referred show the planted olive trees are (0.5 m) on the Royles' lot (ocean) side of such a line. In the dirt area at their base there is either some lawn grass or a garden bed.
But none of this is unequivocal enough evidence to match the clarity of what is required to establish adverse possession. That standard of evidence may be contrasted to the rear area evidence - where the physically observable to third parties, continuous enclosure evidence was more strongly established by the fixed in situ position of the replacement fence and the capacity to close off of the rear area by use of the gate at the end of the replacement fence in a closed position.
Nor does a use of a path across sand in the front area around or between the front olive trees approaching the gate by the defendants over time alter that negative assessment towards this front area adverse possession claim.
At the end, given the physical openness of the front area, even taking into account a mowed lawn ridge line at times on the grass divide, the cultivated garden bed around the olive trees and assembled evidence in MFI 1 (but without any other feature marking the claimed extra frontage area), I am left unpersuaded at the civil standard upon the adverse possession claim over the front area. Accordingly, that part of the claim must fail.

[79]

During closing submissions, counsel for the plaintiffs sought to advance an argument to the effect the defendants' claim to adverse possession was not made out (anywhere) because adverse possession could not be established in circumstances where possession is essentially consensual, rather than adverse. That proposition, of course, so far as the law of adverse possession is concerned is correct.
However, the position here is that from February 1994 until 2017, both neighbours thought that the replacement fence had been erected on the true boundary line, dividing the two adjoining lots. This was an honest mistake on both sides. It was a result of a misplacement in 1992 of the front corner survey peg at the wrong place, erroneously marking from then a dividing frontage corner as between the two adjoining lots at Hesperia Avenue.
Somewhat ironically, an original misalignment in the old fence as regards the border came to be replicated in the replacement fence.
But the scenario of this honest mistake made on both sides does not to any degree engage with the proposition that the plaintiffs (by Sharon) had, in 1993, given a consensual permission to the defendants from then to occupy and use some part of their lot 238, by the capturing of an area portion on the lot 239 side of the replacement fence. Because of the mutual mistake, neither party realised the true position with the realignment fence as erected from 1994. They were not disabused of the fence position error until about August 2017. The evidence is clear that they both thought that the replacement fence was being and had been erected on the true boundary line and were both from then mistaken. Such facts provide no basis at all for an engagement of legal principles that would be otherwise applicable had there been some consensual occupation by agreement about an area of lot 238 by the Royles - with knowledge and consent given to that occupation by the Ben‑Pelechs. That argument must fail. Adverse possession is, as I have found, established but only as regards the rear area.
As I have also now found, the defendants fail in respect of their adverse possession contentions as regards the front area. There was no fence in this area. The area was not enclosed.
Nevertheless, the plaintiffs still press two further defence arguments they put alternatively against an adverse possession outcome over the rear area.
I turn to examine each of these further arguments put against adverse possession in turn.

[121]

Section 123 presents within pt XIII of the PLA. It manifests as something in the character of a counterpart provision to the preceding s 122 of the PLA. Both provisions (see s 122(2) and s 123(2)) bestow a wide, just and equitable power for this court to grant relief, where appropriately engaged. In the case of s 122(2), relief may be sought by the 'encroaching owner' (or any other person) where any part of a building encroaches on a part of adjoining land. Unlike s 123, the term 'building' is expressly defined by s 122(7) to include for the purpose of that section, 'any structure'.
On the other hand, s 123(1) is directed towards situations where a person who has or had an estate or interest in any piece of land has erected a building on any other piece of land, by reason of a mistake as to any boundary or as to the identity of the original piece of land.
It is s 123, rather than s 122 of the PLA, which is presently invoked by the plaintiffs, effectively as a shield against the defendants' adverse possession claim. Correspondingly, as I read the defendants' pleaded counterclaim (see counterclaim par 41), they would also seek to invoke s 123 of the PLA themselves, in the event their adverse possession claims to the front and rear area do not succeed as adverse possession claims.
As we have now seen, however, I have concluded that the defendants' adverse possession claim in respect of the rear area must succeed.
For the defendants then, the only live question then is whether s 123(1) might assist them on their counterclaim as regards their otherwise failed adverse possession claim over the front area. To that end, however, a brief reference to the precise terms of s 123(1) will immediately indicate that such a counterclaim as regards the front area would be conceptually flawed. There has never been an erection of any 'building' over the front area - even if, say, for argument's sake, the as erected replacement fence were to be accepted as potentially being a 'building', for the purposes of s 123(1). As we have seen, the replacement fence ended at the side gate - the dividing point for the front and rear adverse possession areas.
As already now seen, the adverse possession claim of the defendants fails towards that front area. Thus, there is no need for the plaintiffs to engage s 123(1) in their favour towards the front area. Therefore, towards the front area, s 123 of the PLA cannot assist either party.
For relevant purposes then, the trial arguments concerning s 123(1) of the PLA distil to whether it can be engaged by the plaintiffs to effectively shield them against the success of the defendants' adverse possession claim over the rear area.
For the reasons that follow, I am of the view that such PLA arguments must fail. I reach that end position not least for the reason that, by my assessment, the proper function of s 123 of the PLA is such that it cannot be deployed in they way of it resisting what is otherwise a meritorious adverse possession claim. The correct position, as I would assess it, is that the section only works the other way.
In other words, for circumstances where an adverse possession claim. for whatever reason, cannot be made good as regards a 'building' that is erected in the wrong place due to a mistake as to a boundary, or the identity of the original piece of land, then in such circumstances a court might nevertheless be asked to exercise its discretionary s 123 PLA power to issue a just and equitable order and favouring the person who put the building where it is.
As I would assess the legal position, s 123 of the PLA is not meant to serve the function of being invoked as a 'shield' to defeat what otherwise are meritorious and fully accrued adverse possession rights.
Such an assessment would be consistent in policy terms with the preserved character of the exceptional adverse possession rights, recognised notwithstanding the general indefeasibility of title delivered under the Torrens system by s 68(1A) of the TLA. The result also aligns to the complete absence of any case authority to support a proposition that s 123 (or, for that matter, s 122) of the PLA can be invoked as a 'shield' against otherwise fully accrued adverse possession rights.
In Executive Seminars Hasluck J, commencing at [153], discussed both s 122 and s 123 of the PLA. At [154] his Honour observed:

[143]

If, contrary to all that I have written so far, s 123(2) of the PLA were assessed to have been successfully engaged by the plaintiffs, effectively as a shield against an otherwise meritorious adverse possession claim advanced by the defendants over the rear area, I then would be called upon to decide whether the relief the plaintiffs seek, namely, permission to demolish the replacement fence at the rear area, can be granted as just and equitable relief, in all the circumstances.
For completeness, I would state very briefly that on my assessment for what would then be wholly hypothetical circumstances, granting such demolition permission relief would not be just and equitable in all the circumstances, as a matter of discretion.
Essentially, the state of the trial evidence is that the newly subdivided adjoining lot 200 on which the plaintiffs propose to build a new three‑level home is now of a much reduced lot area, compared to the former lot 238, which was 1232 sqm. Lot 200 is only 838 sqm, arising from the plaintiffs' wider subdivision activities.
No doubt it would serve the future convenience of the plaintiffs to proceed to erect what looms as a three-storey structure on lot 200, by utilising every square millimetre of territory which abuts their rear side correctly surveyed boundary line with lot 239.
There were references in the trial evidence to the plaintiffs' successful application to the State Administrative Tribunal (SAT) to obtain a building permit, to erect a new residence in accordance with their submitted plans.
On the other hand, removal of the replacement fence and another replacement, including replacing all the presently underlying retaining walls by the plaintiffs, seems to carry risks of potentially causing unnecessary physical damage to the rear pool paved surrounding area of the defendants' premises. This risk appears to be under circumstances where, were that to occur, the communications passing between the parties and their respective legal representatives before trial look to indicate that the plaintiffs will accept no responsibility for such adverse outcomes to the defendants. See, for instance, Mr Ben‑Pelech's email to various recipients, including Mrs Royle, on 12 September 2017, which concludes (TB vol 2, page 405):

[165]

Balanced against that, and contributing strongly to my view that this issue should be dealt with immediately, are three things. First, this is a relatively small scale neighbourhood boundary fence dispute which regrettably had to come to the Supreme Court. It occupied two days of court time, and then became the subject of an almost 50‑page judgment which I had to deliver as a result of the complexity of the facts and legal issues arising in the course of the trial.
It is important that these sorts of disputes be kept so far as possible within a proper proportionate costs framework - rather than being allowed to blow out and occupy even more time with more hearings as legal costs continue to be incurred. It is important then to take account of that proportionality in the context of the dispute at hand.
Second, there is the freshness of the facts which get dimmer as the judge moves on to the intervening subsequent fifth, sixth, seventh and eighth trials between the hearing of the judgment just delivered in the action at hand. It is better to deal with the costs issues whilst they are fresh in the mind of the judicial officer - rather than being left to the fog that comes through dealing with ensuing cases. If possible, therefore, it is better to deal with these matters whilst they are fresh in everyone's mind, including the judicial officer.
A third factor is the fact that I published the primary reasons for judgment on Friday, 16 August 2019, knowing that would effectively allow the parties 10 days until today to reflect on the reasons. They have enjoyed that opportunity to confer and essentially put any further material before me if they needed to, so the question of costs could be dealt with in order to meet the now discussed considerations of freshness and keeping costs within a proportionate boundary within that framework.
I am reluctant, therefore, given the time that has already been allowed, to let even more time pass before the costs issues are resolved. It would be different, of course, had, say, I published the reasons today and there had been no opportunity for counsel to consider them. But counsel have been given that opportunity.
In all the circumstances, those three factors contribute to my view that final orders, including as to costs, should be dealt with today.
I turn then to the current iteration of the minute that has been exchanged and filed by the first and second defendants. I say that, again, I am grateful to counsel for their conferral over the orders such that order 1, as regards the rear area, and adverse possession orders, 2, 3, 4, 5 and 6 are now essentially uncontroversial. I come back to order 6 in terms of its finalisation. Order 6 will simply need to suspend the order to the third defendant until the determination of any appeal that is brought within 21 days of today's orders. (My final orders are incorporated in the final paragraph of these reasons).

[166]

The second question I deal with is the proper apportionment of costs which essentially fall to the discretion of the trial judge to allocate. Nevertheless, a number of well settled rules of principle regarding the proper apportionment of costs have emerged over the years. So a discretionary costs order is reached by the application of those well settled costs outcome principles.
The first principle usually invoked in these situations is that the successful party is entitled to their taxed costs. Of course, the rule is not immutable. Sometimes the way a trial is conducted dictates that there be no costs orders at all. But, generally speaking, a successful party is entitled to their taxed costs.
In the present case, the primary driver of the dispute was the adverse possession rights which the first and second defendants ultimately proved against the plaintiffs under their counterclaim as regards the 'rear area'. Adverse possession was always the main battleground. As to that key issue, the trial result is that the first and second defendants have been successful in respect of what was referred to as the 'rear area' - namely, over the area of land which abuts their side of the boundary fence which, as a matter of designated title, is within the title of the plaintiffs' lot 200. But, in fact, for a period well over 12 years this rear area land has formed part of the property that has been continuously possessed by the defendants, courtesy of the boundary fence being erected in the wrong place when replaced in 1993.
The result of the trial saw success for the first and second defendants in respect of the rear area. But they were not successful in respect of the front area, mainly because the facts and arguments were different.
Effectively, there were separate factual considerations as regards adverse possession for the two areas. The rear area was closed off over the period that the replacement fence was erected. A gate was erected at the end of the replacement fence as one approached Hesperia Avenue. That part of the case seemed relatively clear, as my reasons discuss, by reason of the physical nature of the enclosure of the rear area being, in effect, communicated to the entire world for well over 20 continuous years.
But the claim in respect of the front area was different and it ultimately failed. It was argued a different way. The facts were different.
There should, in the circumstances, indeed as the first and second defendants would accept through their exchanged minute, be some sort of apportionment of costs - to reflect the differentiation in results, as between the rear area where the first and second defendants were successful and for the front area, where they were not successful. The key question is what should be the degree of the apportionment?

[170]

In terms of the finalisation of all orders then, final orders of 26 August 2019 issued in terms:
1. It is declared that by adverse possession the First and Second Defendants have obtained title to that portion of lot 200 (formerly lot 238), on Deposited Plan 412120 being all the land comprised in Certificate of Title Volume 2937 Folio 666 and known as 41 Hesperia Avenue, City Beach that is enclosed by the existing timber fence and 3 retaining walls and side gate.
2. That the precise area the subject of the declaration under 1 above do be determined by a formal survey undertaken by a surveyor appointed by the First and Second Defendants following a written brief to a surveyor being jointly agreed between the parties.
3. The costs of any such survey (not including any costs incurred by the Plaintiffs) is at the First and Second Defendants' cost.
4. The First and Second Defendants' counterclaim for adverse possession over a frontage portion of lot 200 and for other relief pursuant to section 123(1) of the Property Law Act 1969 (WA), are otherwise dismissed.
5. The Plaintiffs' claims pursuant to section 123(1) of the Property Law Act 1969 and for further declaratory relief and for relief under the Dividing Fences Act 1961 (WA) be otherwise dismissed.
6. The Third Defendant is to amend the respective certificates of title for Lot 200 and Lot 239 to reflect the declaration in 1 hereof, but with such order to be suspended until the determination of any appeal that is brought within 21 days of these orders.
7. The Plaintiffs are to pay all of the First and Second Defendants' costs of between 10.15am and 11.30am of the morning of the first day of Trial and 80% of the First and Second Defendants' other costs of the action and counterclaim, including any reserved costs, to be taxed if not agreed.
8. The First and Second Defendants are to pay 20% of the Plaintiffs' taxed costs in respect of the First and Second Defendants' counterclaim which amount is to be set off against the taxed costs awarded to the First and Second Defendants under order 7 above.

At a glance

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Judgment (171 paragraphs)

Legislation Cited (10)

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