Doherty v Kotroni

[2026] NSWSC 1207

Supreme Court of NSW|2026-10-01|Before: Scruby J

View on NSW Caselaw

At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2026-10-01

Before

Scruby J

Catchwords

LAND LAW — easements — creation of easements — creation by order of court — where easement created by consent under Conveyancing Act 1919 (NSW), s 88K — where plaintiffs seek order “to the contrary” in relation to costs under s 88K(5) — plaintiffs’ application rejected COSTS — party/party — Court’s discretion — where plaintiffs seek an exception to costs order under Conveyancing Act 1919 (NSW), s 88K(5) — whether first defendant engaged in unreasonable conduct by withholding information — plaintiffs’ application rejected

Source

Original judgment source is linked above.

Catchwords

LAND LAW — easements — creation of easements — creation by order of court — where easement created by consent under Conveyancing Act 1919 (NSW), s 88K — where plaintiffs seek order “to the contrary” in relation to costs under s 88K(5) — plaintiffs’ application rejected COSTS — party/party — Court’s discretion — where plaintiffs seek an exception to costs order under Conveyancing Act 1919 (NSW), s 88K(5) — whether first defendant engaged in unreasonable conduct by withholding information — plaintiffs’ application rejected

Judgment

Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.

Medium Neutral Citation: Doherty v Kotroni [2026] NSWSC 1207

Hearing dates: 17 September 2026

Date of orders: 1 October 2026

Decision date: 01 October 2026

Jurisdiction: Equity - Real Property List

Before: Scruby J

Decision: (1) The plaintiffs are to pay the first defendant’s costs of the proceedings.
(2) Subject to order (3), below, the plaintiffs are to pay the costs of the first defendant and the seventh defendant of this costs application.
(3) Any party is entitled to apply to vary order (2) within 7 days by filing and serving written submissions of no more than two pages, together with any additional evidence in support of such submissions. Any such application will be determined on the papers if appropriate.

Catchwords: LAND LAW — easements — creation of easements — creation by order of court — where easement created by consent under Conveyancing Act 1919 (NSW), s 88K — where plaintiffs seek order “to the contrary” in relation to costs under s 88K(5) — plaintiffs’ application rejected
COSTS — party/party — Court’s discretion — where plaintiffs seek an exception to costs order under Conveyancing Act 1919 (NSW), s 88K(5) — whether first defendant engaged in unreasonable conduct by withholding information — plaintiffs’ application rejected

Legislation Cited: Civil Procedure Act 2005 (NSW), s 56 Conveyancing Act 1919 (NSW), s 88K

The substantive proceedings concerned land in Mullumbimby. There are presently three plaintiffs and five defendants to the proceedings. It is sufficient for present purposes to describe the parties as the owners of separate parcels of land in the same area. Maori creek (the creek) runs through this area in a direction that is roughly north to south. There are a number of registered easements that, together, entitle all of the owners in the area to access to their lots from a road (Coopers Lane) to the east. So far as this application is concerned, it is sufficient to focus on a single easement, which runs roughly east to west or perpendicular to the creek. At its eastern end it connects with Coopers Lane.
There is also what the parties referred to as an Access Track that runs from the road in roughly the same direction as the easement. It is called the Access Track because it is a track that, as a matter of fact, owners of lots in the area have actually used to access their properties from Coopers Lane. The Access Track, although it runs roughly in the same area as the easement, does not coincide with it precisely. The discrepancy between the Access Track and the easement was the source of the substantive proceedings. That part of the registered easement which is not on the Access Track contains very thick vegetation where there are leeches and snakes. For the plaintiffs to use the Access Track it is necessary for them to pass through a gate that is located on Mr Kotroni’s land. This part of the Access Track is not within the area of the registered easement. The gate has a lock with a code.
Prior to 2022, the Access Track crossed the creek at a bridge. Floods in that year washed the bridge away and a causeway was built across the creek at a different location, slightly to the south. The Access Track from this time utilised the causeway. On the application before me, the difference between the location of the causeway and the location of the bridge assumed considerable significance.
Ms Doherty acquired her land in the area (Lot B) in 1994. Mr Kotroni became an owner of one of the adjoining lots (Lot 2) on 4 October 2022. This is the lot that is burdened by the easement created by the consent orders made by Pike J. He also has been the owner of two other adjoining lots (Lot A and Lot C) since 1997. These lots have the benefit of the easement that will be created.
It is clear from the evidence that Mr Kotroni knew the area very well by the time he came to purchase Lot 2. It is also clear that he knew before acquiring Lot 2 that the Access Track did not coincide with the registered easement. This was an issue that the owners of the adjoining lots had been discussing for some time. Indeed, it would seem that there have been previous disputes between other owners over the years, including a dispute among the present plaintiffs that was resolved by orders made by Campbell J in this Court in 2006.
On 11 October 2022, about a week after becoming the registered proprietor of Lot 2, Mr Kotroni sent Ms Doherty an email stating that she did not have permission to cross his land other than on the easement. The effect of this was that she could not use the Access Track to access Lot B.
Mr Kotroni received a letter in response from Ms Doherty’s solicitors the next day, which included an assertion that Ms Doherty in fact did have a right to use the Access Track, and that Mr Kotroni was not in a position to prove that the Access Track and easement did not coincide. The letter also made alternative claims that a prescriptive easement existed. Relevantly, it stated:

It is convenient to note three matters about these pleadings.
First, Ms Doherty’s primary claims were based on an argument that there was an easement by misdescription over the Access Track, and that the registered instruments were required to be rectified. Declaratory relief to similar effect was also supported by a claim based on estoppel. The s 88K claims were brought in the alternative, and only to the extent that the primary claims failed.
Secondly, although the pleadings were amended, the above paragraphs of both the plaintiffs’ claim and Mr Kotroni’s defence did not subsequently change. Mr Kotroni’s bare denials in paragraphs 51-53 are the subject of complaint and I will return to them.
Thirdly, Ms Doherty’s allegation in paragraph 17 that the Access Track had not “materially changed” since 1959 passed over the change that resulted from the destruction of the bridge and building of the causeway in 2022. Implicitly, it asserted that this change was not material – but it is not apparent from the pleading why that is so. It might have been so because Ms Doherty was indifferent to which of the two areas the easement was over. It might have been so because Ms Doherty was not indifferent about this but did not regard the change in 2022 as relevant to the question of where the easement was to be located. It might, perhaps, have been so because an easement was claimed over both areas. On the other hand, Mr Kotroni’s bare denial of this paragraph did not make it plain which changes to the Access Track he regarded as material, or why. In this way, paragraph 17 of each of the parties’ pleadings did not facilitate the clear articulation of an issue that has assumed importance on the present application.
On 6 October 2023, upon the filing of an Amended Statement of Claim, an additional two defendants were joined (the sixth and seventh defendants, Mr Proctor and Mr Von der Heyde), who filed submitting appearances.
On 27 October 2023, Mr Kotroni’s solicitors sent the following letter:

Also in the same letter, Mr Kotroni’s solicitors stated, “It is correct that it is not contested that an easement is necessary for the use and development of the plaintiff’s land”. This was, however, a without prejudice letter and the defence that had been filed to the Further Amended Statement of Claim on 28 February 2025 put this in issue with the denial in paragraph 51.
On 31 March 2025, Mr Kotroni obtained a draft report from an engineer, Mr McElroy. The report indicated that, from an engineering perspective, the preferable position for a crossing of the creek was the previous location of the bridge. The existence of this draft report was not disclosed to the plaintiffs until Mr Kotroni’s affidavit of 28 September 2025. It was served under cover of a letter from Mr Kotroni’s solicitors of 28 October 2025. The final report of Mr McElroy indicates that he had inspected the site in January 2025.
The survey that Mr Kotroni had been asking for from the plaintiffs came on 25 July 2025, together with proposed terms of the easement. The survey indicated that the proposed easement crossed the creek at the causeway. The terms indicated, amongst other matters, that a bridge was proposed to be constructed.
On 5 September 2025 Mr Kotroni briefed a surveyor to prepare a survey for an easement that crossed the creek at the location of the old bridge. The report was served on 31 October 2025.
In his affidavit of 28 September 2025, Mr Kotroni referred to Mr McElroy’s engineering advice in his draft report of 31 March 2025, and also to discussions that he said had been ongoing with other landowners regarding replacing the bridge. He said, in substance, that he wanted the bridge in this location and not at the causeway. The plaintiffs submit that, had Mr Kotroni come out earlier in the proceedings and said this, they would have consented to the crossing being in this location. One immediate difficulty with this submission is that after receiving Mr Kotroni’s affidavit, on 8 October 2025 the plaintiffs’ solicitors in without prejudice correspondence nonetheless put forward a revised offer based on the plan that had been prepared by Mr Thompson. The letter stated: “Our clients maintain their position that the easement should follow the currently used track”.
Mr Kotroni’s response to the letter of 8 October 2025 was to agree to the plaintiffs’ proposal but to insist that the bridge be built in its pre-2022 location. This was in a letter from his solicitors of 29 October 2025. In addition to stating this, that letter said:

The plaintiffs were critical of the statement that Mr Kotroni had “not objected to the grant of an easement or the construction of a Bridge in the location it existed up until 2022”. As discussed below, I do not accept their criticisms.
Mr Kotroni then served Mr Riordan’s survey on 31 October 2025. This was the survey that was ultimately incorporated into the consent orders granting the easement. He also served Mr McElroy’s engineering report of 19 November 2025, which identifies the pre-2022 location of the bridge as a suitable place to build a replacement bridge.
Mr Kotroni on 11 December 2025 served a valuation report from Mr Allsop calculating compensation payable to Mr Kotroni on the basis of the grant of the easement in Mr Riordan’s survey. Mr Allsop’s valuation of $26,000 as the appropriate award of compensation was ultimately adopted in the consent orders made by Pike J. No valuation was obtained by the plaintiffs. Mr Allsop also assessed compensation on the basis of an easement that crossed the creek in the location of the causeway, as proposed by the plaintiffs on 8 October 2025. He assessed compensation on this scenario as $41,000.
On 6 March 2026 Mr Kotroni’s solicitors sent a Calderbank letter offering to compromise the proceedings on the basis of the grant of a s 88K easement on terms that incorporated Mr Riordan’s survey and Mr Allsop’s valuation. This letter required the payment of $150,000 for Mr Kotroni’s costs. The terms of settlement also required the consent of the sixth and seventh defendants.
On 7 April 2026 the plaintiffs responded with an offer of compromise. This document provided for the resolution of the proceedings on the basis of an easement on the same terms and with the same compensation as Mr Kotroni had proposed, but provided for the separate determination of the question of costs. It also did not require the consent of the sixth or seventh defendants.
The above offer was rejected by Mr Kotroni’s solicitors, but only on the basis that it did not require the consent of the sixth or seventh defendants and that the proposal in relation to costs, if accepted by Mr Kotroni, would deprive him of the benefit of the presumption as to costs in s 88K(5). They suggested an alternative way to deal with both matters that was ultimately accepted by the plaintiffs.
On 3 June 2026, Pike J made orders by consent granting an easement under s 88K. As will be apparent, the terms on which the consent orders were made embodied the plan contained in Mr Riordan’s survey. They also provided for the payment of compensation as assessed by Mr Allsop (that is, $26,000) and, in substance, the terms proposed by Mr Kotroni’s solicitors on 6 March 2026.

Although, as Studholme emphasises, the circumstances in which the power may be exercised are broad, one common touchstone is the identification of unreasonable conduct on the part of the defendant (see, for example, Rainbowforce Pty Ltd v Skyton Holdings Pty Ltd (2010) 171 LGERA 286; [2010] NSWLEC 2 at [181]-[183] (Preston CJ)). This was the focus of the plaintiffs’ submissions. What is reasonable needs to be assessed in the context of the nature of a s 88K application. That includes its compensatory nature and the entitlement of a defendant to reject reasonable attempts to obtain an easement by consent prior to the litigation.
The reasonableness of a defendant’s conduct in s 88K proceedings also needs to be assessed in a context that recognises that s 88K imposes a statutory onus on a plaintiff to specify the terms of the easement and, if the land is Torrens Title land, to provide a plan capable of being registered. This is apparent from the terms of s 88K(3), and the importance of this aspect of the section has been emphasised in many of the authorities dealing with the power conferred under s 88K: see, for example, Studholme at [44]-[46] and cases there cited; Nahata v Robertson (No 2) [2023] NSWSC 1297 at [24]-[25].
I was referred to the frequently cited observations of McHugh J in Re Minister for Immigration & Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622 at 624-5; [1997] HCA 6 regarding the assessment of costs in matters that do not proceed to a final hearing. These observations — which were made in the context of exercising a power to award costs under the rules of the High Court as they then stood — in my view are of very limited assistance in deciding whether to make an order to the contrary under s 88K(5), and if so what order. I have referred to authorities that establish that the unreasonableness of a defendant’s conduct can result in an order to the contrary under s 88K(5). Unreasonable conduct was also one of the circumstances identified by McHugh J as a possible basis for making a costs order when proceedings have settled before a final hearing. However, what is reasonable or unreasonable depends on the nature of the power to order costs that is being exercised and the circumstances in which it is exercised. Here, that requires a focus on s 88K itself and the facts of this case.

The plaintiffs seek:
an order that Mr Kotroni pay the plaintiffs’ costs of and incidental to the proceedings up to and including the date of the disposal of the application for the interlocutory injunction;
that there be no order as to the costs of the balance of the proceedings; and
alternatively to (2), that Ms Doherty, the Spiropouloses (jointly) and the sixth , seventh defendants each pay 25% of Mr Kotroni’s costs.
In oral submissions, the plaintiffs advanced a further alternative submission to (2), namely that there be no order as to costs save that the plaintiffs pay the costs of Mr Kotroni’s expert reports.
Mr Kotroni opposes these orders. He submits that there is no basis to “order to the contrary” for the purposes of s 88K(5) and seeks an order that the plaintiffs pay his costs. Mr Wall, who appeared for the seventh defendant, opposed alternative (3) of the orders that the plaintiffs sought. The sixth defendant was given notice of the plaintiffs’ application but did not appear.
The plaintiffs’ broad submission was that Mr Kotroni had acted unreasonably in the conduct of the proceedings. At the centre of the plaintiffs’ case was the submission that until his affidavit of 28 September 2025, Mr Kotroni withheld the fact that he agreed to the plaintiffs’ proposal for an easement, apart from the position of the bridge. The submission was that, had Mr Kotroni put his cards on the table at an appropriately early point, the plaintiffs would have agreed to position the bridge in the place requested by Mr Kotroni, and that this would have obviated the need for much of the proceedings.
These submissions were elaborated in writing and orally by reliance on various aspects of Mr Kotroni’s conduct. It is necessary to assess all of that conduct as a whole, but it is convenient to deal with its aspects in chronological sequence.
First, the plaintiffs rely on what they say is the unreasonable conduct of Mr Kotroni prior to the litigation.
I am not satisfied that anything done by Mr Kotroni prior to the commencement of litigation was unreasonable or otherwise justifies departure from the usual position under s 88K(5). The question of how to deal with the fact that the easement as registered did not coincide with the Access Track was a matter that had been the subject of discussion and correspondence between lot owners in the area for a long time. Mr Kotroni is said to have been unreasonable in denying Ms Doherty access (but not others) and forcing her to seek urgent interlocutory relief. However, the abandonment by Ms Doherty of all but her s 88K claims demonstrates that Mr Kotroni had a legal right to do this (or, at the very least, that it was not unreasonable for him to take the view that he had such a legal right). Whatever one might say about neighbourly good manners, I do not regard the stance that he took as supporting an order that the first plaintiff have her costs of the interlocutory process or as justifying a “contrary” order under s 88K(5).
Nor do I consider it to have been unreasonable for Mr Kotroni to have put forward a “without prejudice” offer to Ms Doherty and the Spiropouloses on the terms set out in his solicitors’ letter of 13 December 2022 which I have referred to above. As the owner of property over which an easement was sought, he was entitled to attempt to negotiate the terms on which the easement was to be granted. The pursuit of an easement from the Spiropouloses as part of this proposal was described by the plaintiffs as a “collateral purpose” – but in my view it was a perfectly legitimate proposal for someone in his position to make in without prejudice correspondence. Mr Kotroni’s offer to accept $125,000 by way of compensation was more than the compensation that he ultimately received in the consent orders made by Pike J. But the compensation ordered by Pike J was more than the $1 that Mr Kotroni was twice offered by the plaintiffs. I do not consider the making of any such offers to have been unreasonable or to otherwise justify a “contrary” order under s 88K(5).
Secondly, (and this was the focus of their submissions orally) the plaintiffs submit that after the commencement of proceedings, Mr Kotroni engaged in tactical manoeuvring concerning his position regarding the location at which the easement should cross the creek. They submit that he knew the plaintiffs were proposing an easement over the causeway, and that he gave the plaintiffs to understand that he was content with that but then changed tack with the service of his evidence by insisting that the bridge be placed in its previous position. The submission was also put on the slightly different basis that Mr Kotroni always wanted the easement where the bridge used to be located but withheld that from the plaintiffs despite knowing that they were suggesting an easement which crossed the creek at the causeway. These submissions focused on various statements by Mr Kotroni in his affidavits and in solicitors’ correspondence about his position in relation to the easement and which I have set out above.
The plaintiffs’ submissions on this issue also rely on an affidavit sworn by Mr Kotroni on 26 August 2026 for the purposes of this costs application. Because of its centrality to the plaintiffs’ submissions, it is necessary to set out paragraphs 6-10 in full:

The plaintiffs submit that these paragraphs reveal that Mr Kotroni knew all along exactly where the plaintiffs were proposing to put their easement and so that the multiple requests made through his solicitors for specification were unnecessary. What Mr Kotroni really should have done, on the plaintiffs’ submission, is to come out and say early on that he wanted the easement to cross the creek in the location of the previous bridge.
Mr Kotroni’s most recent affidavit compels acceptance of the premise from which the plaintiffs’ submissions start – namely that he knew during the course of the proceedings that the plaintiffs were seeking an easement that crossed the creek at the causeway. However, this does not mean, and I do not accept, that the various requests from his solicitors for a plan specifying the precise location and terms of the easement were tactical evasions or disingenuous. That Mr Kotroni knew the plaintiffs wanted the easement to cross the creek at the causeway does not imply that he knew exactly what they were seeking. Prior to February 2025, Ms Doherty’s case was put in the alternative and her s 88K case was only pressed to the extent that her primary case failed to achieve coincidence between the easement and the “Access Track” (see paragraph 52 of the Statement of Claim, quoted above). After the abandonment of this primary case, precise specification of the terms of the s 88K easement sought and provision of a plan in registrable form was, as I have explained, a fundamental part of the plaintiffs’ case and a necessary precondition for any exercise of the power under s 88K(1). So also was an assessment from an engineering perspective as to viability of building a bridge at the location proposed for the crossing of the creek. Mr Kotroni was not merely entitled to wait until such specification was provided until making his position plain, but in my judgment it was reasonable for him to insist on this entitlement, particularly in circumstances where his solicitors made repeated requests for this information over a lengthy period. I have set out above requests made on 27 October 2023, 19 March 2024, 5 December 2024 and 14 March 2025 (and the latter letter makes reference to additional requests). These requests were all the more justified when one remembers that what seems to be the first solicitors’ correspondence Mr Kotroni received (on 12 October 2022, set out above) asserted that Mr Kotroni was unable to establish that the Access Track did not coincide with the easement because he did not provide Ms Doherty with a survey to establish that.
For similar reasons, I do not accept that, during the course of proceedings, Mr Kotroni gave the plaintiffs to understand that he was content for any easement to be located in the position of the causeway but then changed his position in his affidavit of September 2025. The position conveyed to the plaintiffs’ solicitors, in my view, was clear: before taking a stance on any particular issue, Mr Kotroni wanted to see a concrete proposal from the plaintiffs with specific terms and a plan in registrable form and engineering advice regarding the proposed location of the bridge. In my view, this was not only a reflection of the statutory onus that the plaintiffs bore but also an entirely reasonable stance to take.
Nor I do not accept that Mr Kotroni was always prepared to agree to an easement at the location of the previous bridge or that this is the effect of his 26 August 2026 affidavit. His evidence in the latter affidavit was to the effect that he disagreed with what he understood to be the plaintiffs’ contentions (a) that the causeway was historically the access route used when crossing the creek; and (b) that the causeway was the preferable position for the crossing in any easement which may be granted. This is not the same as being prepared to agree to an easement at the location of the previous bridge. In any event, up until February 2025, the plaintiffs’ primary case was based on the existence of an easement by misdescription (and estoppel). The question of which location for the crossing was preferable did not matter on this case (although the question of historical use was important). Thus, there could be nothing unreasonable in Mr Kotroni’s failing to reveal whatever preferences he had, at least up until this point. Nor do I accept that there is any inconsistency or discrepancy between the position Mr Kotroni took in his March 2024 affidavit and his position in his August 2026 affidavit. As I have said, in March 2024 Mr Kotroni’s preference for the location of any easement which may be granted under s 88K was very much a background issue: the primary claim against him was put on the basis of an easement by misdescription and on this claim his preference was irrelevant.
Even assuming that he had a preference in some form for a bridge in a previous location if an easement were to be granted, up until 31 March 2025 Mr Kotroni did not have engineering advice that indicated that this preference was practical. Even once he received that advice, he did not know whether the plaintiffs had engineering advice that indicated it was practical for there to be an easement that crossed the creek at the causeway. In my view it was not unreasonable for him to ask the plaintiffs for such advice and wait to see it before committing himself to any particular position. If the plaintiffs had advice that the causeway was a superior place for the crossing (perhaps because a bridge would be cheaper to maintain or less likely to wash away in another flood or because the foundations were more secure) then Mr Kotroni’s “preference” may have changed. Alternatively, his preference may not have changed but he may have been forced to concede that the plaintiffs would succeed at trial in establishing that the causeway was the preferable place for a crossing. His position might also have depended on what compensation was involved. Mr Kotroni was a defendant and not a plaintiff in the proceedings and I do not consider that it was unreasonable for him to wait until the plaintiffs had made their position on this issue plain.
Nor do I regard Mr Kotroni’s statement through his solicitors in their letter of 29 October 2025 that he had “not objected to the grant of an easement or the construction of a Bridge in the location it existed up to 2022” as evasion of any kind. Instead, it was a true statement, and to be understood in the context of: (a) earlier suggestions for that to occur (such as those in the email chain attached to his solicitors’ letter of 27 October 2023); and (b) Mr Kotroni’s overall stance that a survey and engineering assessment had to be provided by the plaintiffs before he was required to commit to any position on this issue.
The plaintiffs relied on the decision of Peden J in Jeffrey v Adams [2023] NSWSC 1270 (Jeffrey) as an example of a similar facts situation in which a defendant was held to have engaged in unreasonable conduct for the purposes of s 88K(5). It is not often in costs arguments that the facts of one case provide any significant assistance in determining what is reasonable in another and Jeffrey is no exception in the present case. Apart from anything else, in that case, the assessment under s 88K(5) occurred after a contested hearing which resulted in a grant of s 88K relief (and which also involved a rejection of cross-claims against the plaintiff and allowing other claims made by the plaintiff for injunctive relief). Further, the opposition to the easement granted in that case, which her Honour found justified an order to the contrary under s 88K(5), does not bear any analogy to Mr Kotroni’s conduct in the present case in making the repeated requests that he did through his solicitors for details of the plaintiffs’ proposal.
Thirdly, the plaintiffs rely on Mr Kotroni’s defences as filed. They submit that it was inappropriate for him to make the bare denials that appear in paragraphs 51-53 of all of those defences. Instead, the plaintiffs say he should have filed a pleading that put in issue what was really in dispute, which was the location of the easement, as distinct from its reasonable necessity for the effective use of Lot 1 or inconsistency with the public interest.
This submission overlooks the difficulty (referred to above) that in my view was caused by the definition of Access Track in the pleadings, and the plaintiffs’ allegation that it had not materially changed since 1956. In this context, and in a context where the plaintiffs never, until July 2025, provided any precise definition of the easement that they were seeking, I am not prepared to accept that a failure to plead a defence in the way the plaintiffs contend was in breach of the requirements of s 56 of the Civil Procedure Act 2005 (NSW). I do, however, accept that Mr Kotroni’s defence did not reflect his position in correspondence at the time and before me in submissions – which was that he ought not to have been required to take any particular position in relation to the s 88K claim until he had a proper survey indicating the location of the easement and also its precise terms. In my judgment this was a reasonable position to take. However, the appropriate way to take that position in his defence was to say as much and to make non-admissions in response to paragraphs 51-53 on that basis. This was not done. As a result, his pleading did not appropriately identify the real issues in dispute. Mr Gunning, who appeared for Mr Kotroni, accepted that this is not a matter to be deprecated.
Nonetheless, the question is what consequences if any this should have for the purposes of s 88K(5). If the pleading had been in the form that I have outlined above, then it does not seem to me that anything would have been very different in the litigation. The position that in my view should have been articulated in the pleadings was in fact articulated by Mr Kotroni’s solicitors in correspondence. The plaintiffs had been given notice on multiple occasions that Mr Kotroni required a survey and precise specification of the terms of the easement sought in order to understand the case put against him. Nonetheless, this did not occur until 25 July 2025. In these circumstances, although I agree that Mr Kotroni’s bare denials did not properly identify the real issues in dispute, I do not consider that this affords any reason to depart from the usual position under s 88K(5).
In a related submission, the plaintiffs say that, because he was an owner of two lots that benefited from the easement ultimately granted, Mr Kotroni had no proper basis for denying that the easement was reasonably necessary for the effective use of Ms Doherty’s land or denying that its creation was not inconsistent with the public interest. I do not consider that it follows as a matter of logic or practicality that Mr Kotroni’s position as owner of Lots A and C was the same as Ms Doherty when it came to relations with Mr Kotroni as owner of Lot 2. But in any event, having regard to the lack of definition in the pleadings and in correspondence until July 2025 of the easement sought by the plaintiffs, I do not consider that this submission takes matters further than the submission I have rejected in the above three paragraphs.
Fourthly, the plaintiffs submitted that, had Mr Kotroni come out early in the proceedings and said that he wanted the easement to cross the creek where the old bridge had been, they would have consented to that. One immediate difficulty with this submission is that after receiving Mr Kotroni’s affidavit of 28 September 2025, the plaintiffs’ solicitors in without prejudice correspondence on 8 October 2025 nonetheless put forward a revised offer based on the plan that had been prepared by Mr Thompson. That letter stated: “Our clients maintain their position that the easement should follow the currently used track”. The plaintiffs’ submission is thus not made good on the evidence. The other difficulty with the submission is that it assumes that Mr Kotroni had such a view from a much earlier point in time and that, if he did, he was obliged to disclose it. I do not accept either of these assumptions. Mr Kotroni only obtained engineering advice on 31 March 2025 that supported an easement at the previous location of the bridge. Even after this time, as I have said, it was not unreasonable for him to wait to see the terms on which the plaintiffs proposed the easement be granted, and what if any engineering advice they had received about building a bridge over the causeway, before committing to a position.
Fifthly, the plaintiffs submit that I should take into account the fact that Mr Kotroni has obtained and was always going to obtain the benefit of the easement in question by virtue of his ownership of Lots A and C. I have taken this into account but it does not seem to me to move the dial very far on the question of unreasonableness. Like the other owners of lots who benefit from it, Mr Kotroni is required by the terms on which the easement has been granted to pay his share of the costs of its creation. Further, to the extent that Mr Kotroni was always going to get the benefit of the easement by virtue of his ownership of Lots A and C, that is the legal consequence of his right as owner of those lots. I do not accept that this imposed on him any additional obligations in his capacity as a defendant in these proceedings. He could have obtained an easement that benefited only the lots that he owned without the involvement of any other landowner, including the plaintiffs. On this scenario he would have had to pay the entire costs of whatever was involved in the creation of the easement. But on this scenario the other owners of adjoining lots would not have obtained the benefit of it. The possibility that this could have occurred is therefore, in my view, of no moment.
For the above reasons, I do not consider that any of the criticisms made by the plaintiffs of Mr Kotroni’s conduct make out a sufficient reason to order “to the contrary” for the purposes of s 88K(5). Nor do they if taken collectively. The overall difficulties for the plaintiffs may be summarised as follows.
First, up until February 2025 Ms Doherty’s claim under s 88K was only put in the alternative, and her primary claims were based on allegations that were ultimately abandoned. Mr Kotroni’s conduct in connection with the s 88K claim prior to this point in time could not be unreasonable in any relevant sense. Any preference that Mr Kotroni may have had for any easement that might be granted to cross the creek at the location of the previous bridge was irrelevant to the primary case that Ms Doherty advanced.
Secondly, the plaintiffs did not provide any plan in registrable form of the s 88K easement they sought (or any other) until July 2025, or any specification of its terms. The plaintiffs never explained why it took until July 2025 for this to occur. These are basic requirements of any application or order under that section. It was not unreasonable for Mr Kotroni through his solicitors to repeatedly request compliance with these requirements, or to wait until they were met before committing to any particular position about the location of the crossing of the creek in any easement.
Thirdly, although terms of the easement proposed in July 2025 included that there be a bridge over the causeway, the plaintiffs never obtained any engineering assessment of the viability of the bridge at that location (or any other). It was not unreasonable for Mr Kotroni to seek the provision of such advice before advancing any alternative proposal. Further, if the matter had proceeded to hearing, it would have been difficult, if not impossible, for a court to have been satisfied that an easement in this position was either reasonably necessary or in the public interest without some such assessment having been done.
Fourthly, the proceedings did not terminate in a contested hearing but resolved on the basis of consent orders. Those consent orders embodied the registrable plan created by Mr Kotroni’s expert and awarded compensation in the amount assessed by his expert. The terms of the easement in the consent orders were the terms proposed by Mr Kotroni’s solicitors on 6 March 2026. Those terms provided for the construction of a bridge that an expert retained by Mr Kotroni had assessed as feasible in the location proposed. Mr Kotroni’s conduct of the proceedings thus resulted in the drafting and then making of orders to which the plaintiffs agreed.
For the above reasons, I reject the plaintiffs’ application for an “order to the contrary” to the effect that Mr Kotroni pay their costs or that there be no order as to costs.
Similar reasons inform my rejection of the plaintiffs’ alternative submission that they should pay only for the experts retained by Mr Kotroni. This was said to be a broad brush way of making some provision for what the plaintiffs contended was unsatisfactory conduct on the part of Mr Kotroni. However, for all of the above reasons I am not persuaded that his conduct was unsatisfactory. There was, in one sense, an unnecessary duplication in experts in the proceedings in that both the plaintiffs and Mr Kotroni retained surveyors. However, this was a consequence of the plaintiffs’ failure to engage with the repeated requests from Mr Kotroni’s solicitors – something that was made explicit in their letter of 14 March 2025, which I have quoted at length above.
So far as the costs of the interlocutory application are concerned, I also reject the plaintiffs’ application. The interlocutory injunction was sought in aid of final relief. It would appear from the transcript that Mr Kotroni’s legal representatives had something in the nature of a few hours’ notice of the hearing. It is not clear from the transcript whether the final relief in respect of which the interlocutory relief was claimed was the claim for the s 88K easement or instead one of the primary bases on which Ms Doherty claimed to be entitled to an easement. It was not necessary to articulate this issue because the interlocutory orders were made by consent. Given that all other claims for relief apart from s 88K were ultimately abandoned, and that it may be that the interlocutory injunction was granted in aid of these claims, I do not consider that Mr Kotroni’s consent to the interlocutory injunction affords any basis to make a costs order against him on that application. There is certainly no basis to say that he acted unreasonably in the short period of time between the commencement of the proceedings and the making of consent orders. Nor, as I have said, do I consider that Mr Kotroni’s pre-litigation conduct was unreasonable in any sense.
I also reject the plaintiffs’ application so far as it concerns the sixth and seventh defendants. Both these defendants submitted to the orders of the Court and played no active part in the litigation. The plaintiffs appear to submit that they should not have their costs because they benefited from the easement and participated in the mediation. The first matter is immaterial in circumstances where these defendants submitted, and where under the terms of the easement they will share in the costs of its creation. The second matter is also irrelevant in circumstances where their attendance was compulsory because it was the subject of a court order and where I have no evidence as to what occurred at the mediation. Neither individually nor together do these matters go any way towards persuading me that I should make an “order to the contrary” that would require either of these defendants to share in paying Mr Kotroni’s costs. Mr Kotroni does not himself seek such an order and indeed opposes it.
For the above reasons, I decline to “order to the contrary” within the meaning of s 88K(5) and will order that the plaintiffs pay the first defendant’s costs of the proceedings.
My preliminary view, having not heard from the parties, is that the first and seventh defendants should have their costs of this costs hearing. In forming this preliminary view, I have considered the offers that were made in correspondence and purportedly under the rules by Mr Kotroni on 6 March 2026, by the plaintiffs on 7 April 2026 (and Mr Kotroni’s response on 29 April 2026) and by Mr Kotroni on 15 May 2026. However, I will make orders which permit the parties to be heard in writing and, if necessary, orally, on this issue if they wish. The sixth defendant did not appear on the application before me and so there should be no order as to his costs.
No orders have yet been made finally disposing of the balance of the proceedings. The plaintiffs inform me that their claims have not been determined or compromised against the third defendant. Other than this defendant, it would appear that orders should also be made dismissing the proceedings. If the parties can agree on appropriate orders to make in the substantive matter, I will make them in chambers. Otherwise, these issues should be dealt with before a registrar or in the Real Property List as is appropriate.

Doherty v Kotroni

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment

JUDGMENT

Introduction

The history of the proceedings

Principles

Submissions and Disposition

Orders

Amendments

02 October 2026

Parties

Legislation Cited (2)

Cases Cited (14)