//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2025] NSWCA 139
procedural. The notice of motion filed on 30 May 2025 was dismissed with costs. The requested revision of Order 3 and variation of the earlier costs orders were refused. The appellants were not awarded...
The Court of Appeal had earlier declared Mr Smith the owner of the house and curtilage, extended to provide access to the Unformed Road. Mr Smith later argued that the declaration should be changed because it did not cover tracks needed to reach Ravensdale Road by vehicle. The court said that was not what it had intended: it had meant access from the house to the Unformed Road, not ownership of or rights over the red and orange tracks. The court also refused to revisit the earlier costs orders. It dismissed the motion with ordinary costs, but did not award indemnity costs because the application was not hopeless from the outset.
AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.
2,201 words · generated 06/10/2026
This is a consequential-orders decision following the Court of Appeal’s earlier judgment in Evans v Smith [2025] NSWCA 102. The underlying dispute concerned an adverse possession claim over rural land on the Central Coast. On 16 May 2025, the Court allowed the appellants’ appeal by majority, with Adamson JA dissenting only about the extent of the relief, and made a declaration concerning the land occupied by Kenneth Smith’s house and curtilage. The declaration extended that area to accommodate access to the Unformed Road. [1]
2 cited instruments linked from this judgment.
The earlier reasons explained that the extended curtilage should provide access between the house and the Unformed Road, where the mill had formerly stood. The Court contemplated a narrow access area running from the house and shed towards the Unformed Road, and gave the parties liberty to apply if they disputed how that area should be identified on title documents. [2]
Mr Smith then filed a motion under r 36.16(3A) of the Uniform Civil Procedure Rules 2005 (NSW). He sought an amended declaration specifying a six-metre-wide land segment and additional land shown by dotted red lines on a plan. In practical terms, he argued the existing declaration failed to include tracks needed to travel by vehicle from the house to Ravensdale Road. He also sought changes to the earlier costs orders. [3]-[4], [11]-[13]
The appellants opposed the motion. They said the existing declaration accurately reflected the land for which adverse possession had been established, including the intended access to the Unformed Road, and argued there was no material oversight or other proper basis to reopen the case. [14]
Ward P and Stern JA dismissed the motion with costs. Adamson JA agreed with their reasons and the result. The court refused both the proposed change to the land declaration and the requested variation of the costs orders. It ordered ordinary, not indemnity, costs of the motion. [30]-[32]
The central procedural rule was finality. The court described the power under UCPR r 36.16(3A) to recall or vary perfected orders as limited and available only with circumspection in exceptional cases. Finality is fundamental, although it may yield in rare cases such as material misapprehension or denial of procedural fairness. [5]
The court adopted a demanding meaning of “misapprehension”. Drawing on the authorities discussed in its reasons, it said a qualifying error involves “oversight and inadvertence”, not a deliberate decision that a party later considers incorrect. Mere dissatisfaction with the outcome is not enough. [5] This distinction was decisive: the motion could not succeed simply because Mr Smith believed the declaration produced an unsatisfactory practical result.
The court examined the earlier reasons and the plans relied on in the motion. It rejected the claim that the majority had understood the extended curtilage to include the red and orange tracks, or to provide direct access across those tracks to Ravensdale Road. References in the earlier judgment to access to the mill and Ravensdale Road concerned the broader adverse possession claim to the Contentious Land. The question of what land formed the house’s curtilage was different. [15]
The intended route was from the house to the Unformed Road, from which the first respondent could reach Ravensdale Road. The court had not assumed that this further journey would be made along the red and orange tracks. Those tracks were associated with rights of way offered by the appellants but not accepted by Mr Smith. In the court’s view, including them in the house’s curtilage would go beyond the concept of curtilage being applied. [16]-[17]
The court also rejected the suggestion that it had mistakenly treated the tracks as part of the Unformed Road. It said the Unformed Road was separate from the tracks and had not been built, as the earlier reasons made clear. The court noted that a finding of adverse possession of the house and its curtilage did not itself grant rights of way across the appellants’ land. [17]-[18]
The majority accepted that excluding the red and orange tracks could create a practical difficulty: another track might need to be formed or made to connect the Unformed Road or Lot 1 with Ravensdale Road. But the curtilage extension had been based on access the court inferred from possession and use of the house during the relevant period. It was not based on access across the areas occupied by the red and orange tracks. [19]
As for costs, the court found no proper basis to reopen the earlier orders. Costs had been addressed in written submissions on the appeal, and there had been no request for oral submissions after judgment. [24] Mr Smith relied partly on the appellants’ late concession that he had established adverse possession of the house and immediate surrounds. The court considered that any apportionment across issues would require assessing the time and costs attributable to the house and surrounds separately from the balance of the land. It was not appropriate to undertake that exercise belatedly. [26], [29]
Finally, the court ordered ordinary costs of the motion but refused indemnity costs. Although Mr Smith’s understanding of the earlier reasoning was wrong, the court did not consider the application so hopeless as to have been doomed from the outset. [30]
This decision does not announce a new general test for reopening perfected orders. It applies the existing approach to the specific motion before the Court. The rules and principles stated in the judgment are that r 36.16(3A) is a limited power, finality is fundamental, and reopening requires an exceptional basis. A claimed misapprehension must be an inadvertent oversight, not a challenge to a deliberate decision. [5]
The decision’s practical contribution is its careful distinction between a mistaken assumption about the court’s reasoning and disagreement with the consequences of the order. Mr Smith said the declaration did not give him the access he understood the court to have intended. The majority examined its earlier reasons and held that the intention had been narrower: access to the Unformed Road, not ownership of or a right over the red and orange tracks. [15]-[22]
The decision also demonstrates that a practical problem arising from an order does not, by itself, establish the kind of inadvertence required to reopen it. The court acknowledged the possible need for another track but treated that consequence as separate from the question whether it had made its order under a misapprehension. [19]-[20]
On costs, the judgment records that the usual costs position was argued by the parties and that the appellants sought indemnity costs. The motion was dismissed with ordinary costs, while indemnity costs were refused on the particular assessment that the application was not hopeless from the outset. [27]-[30] The decision does not set out a comprehensive new test for indemnity costs; it resolves the request on the basis advanced in this motion.
The provided judgment does not establish a change to the law before and after this decision. It applies the authorities it cites, including Power, Autodesk, Hollingsworth, Ranclose and Majak, to the circumstances of the application. [5]
At [5], the court states: “The principle of finality of litigation is fundamental to the administration of justice.” In plain English, a judgment ordinarily remains settled once made. The power to change it is not a second opportunity to argue the case.
At [5], the judgment describes qualifying errors as “readily identifiable, readily rectifiable, inadvertent errors”. The practical meaning is that the error must be identifiable and correctable, and must have occurred unintentionally. A party’s view that the court got a deliberate decision wrong is not enough.
Also at [5], the court explains that misapprehension means “oversight and inadvertence”, not “deliberate decisions which are said to be incorrect”. This is the key distinction applied to Mr Smith’s motion: his asserted difference between the order and the result he wanted did not show that the court had accidentally misunderstood the matter.
At [15], the court says references to access to the mill and Ravensdale Road in the earlier reasons were made in considering the adverse possession claim to the whole Contentious Land. That was “a different issue” from defining the house’s curtilage. The distinction prevented the wider access discussion from being read as a decision to include every route to Ravensdale Road within the curtilage.
At [20], the court states: “What [115] of our reasons contemplated was access from the Smith house to the Unformed Road”. In plain English, the extension was intended to connect the house to the Unformed Road. The court did not intend the declaration to confer ownership over the red and orange tracks.
At [30], the court says the application was not “so hopeless as to have been doomed to failure from the outset”. That explains why the appellants received ordinary costs rather than indemnity costs, even though they succeeded in opposing the motion.
The decision is most directly relevant to applications asking an appellate court to recall or vary a perfected order under UCPR r 36.16(3A), particularly where the asserted basis is that the court misunderstood a fact or the effect of its own reasoning. The judgment emphasises that the application must identify more than a difference between the result obtained and the result a party considers fair or intended. [5], [12]
It may be relevant where a party says that a declaration about land, access, or another defined subject does not match the court’s reasons. The decision shows the court comparing the wording of the order with the reasons and diagrams to determine what had actually been decided. Here, the court distinguished a route to the Unformed Road from tracks over which rights of way had been offered but not accepted. [9]-[11], [15]-[21]
The case also concerns a party who says an order causes a practical problem. The court acknowledged that Mr Smith might need another track to reach Ravensdale Road but did not treat that practical difficulty as proof that the original order resulted from inadvertence. [19]
For costs, the decision may be relevant where a party seeks to revisit costs after judgment by relying on a late concession or suggesting that costs should be apportioned between issues. The court noted that an apportionment would require a retrospective assessment of the time and costs spent on different issues. [26], [29] It is not a general ruling that costs can never be revisited in those circumstances; the decision is confined to the basis and record before the Court.
The supplied judgment does not describe any later court’s treatment of Evans v Smith (No 2) [2025] NSWCA 139. The decision is dated 26 June 2025, and the provided text contains no subsequent judicial history. It would therefore be unsupported to say that later courts have followed, distinguished, or applied it.
The judgment itself identifies earlier authorities relevant to its reasoning. It cites Power v Deputy Commissioner of Taxation (No 2) for finality and the limits of reopening orders; Autodesk Inc v Dyason (No 2), State of New South Wales v Hollingsworth (No 2), and Ranclose Investments Pty Ltd v Leda Management Services Pty Ltd (No 2) in connection with exceptional grounds to recall or vary orders; and Majak v Rose (No 5) through the discussion in Hollingsworth concerning inadvertent error. [5]
On costs, the judgment records the parties’ reliance on Latoudis v Casey and Oshlack v Richmond River Council concerning ordinary costs principles, and J-Corp and Colgate-Palmolive concerning the appellants’ indemnity-costs argument. [28] The judgment’s own outcome was ordinary costs of the motion, with indemnity costs refused. [30]-[31]
The judgment resolves the meaning the majority attributed to its own earlier order, but it does not determine the precise practical arrangements for reaching Ravensdale Road from the Smith land. It recognises that a different track might need to be formed or made, without deciding how that would occur or what legal rights might apply to any alternative route. [19]
The reasons say that liberty to apply could encompass identifying the green track as the location of the extended curtilage if it were the sensible or more convenient route from the house to the Unformed Road. The court did not make that identification in the motion before it, and it rejected the broader revised declaration sought by Mr Smith. [20]-[22]
The judgment also does not determine any further dispute about the consequences of the declaration for title documents or the physical delineation of the extended curtilage. Its discussion is limited to what the earlier reasons contemplated and why the requested revised order did not follow from them. [2], [20]-[22]
Finally, the decision does not provide a detailed method for apportioning costs between issues where a party relies on a late concession. It says that such an exercise would require assessing time and costs by issue and was not appropriate to undertake belatedly in this matter. [29] Whether a different application or record could justify such an assessment is not decided.
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on or relying on this analysis, have a qualified Australian lawyer check it.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Evans v Smith (No 2) [2025] NSWCA 139
Hearing dates: On the papers
Date of orders: 26 June 2025
Decision date: 26 June 2025
Before: Ward P and Stern JA at [1]; Adamson JA at [32]
Decision: 1. The notice of motion filed on 30 May 2025 is dismissed with costs.
Catchwords: JUDGMENTS AND ORDERS – amending, varying and setting aside – order sought under r 36.16(3A) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) to recall and replace order declaring scope of extended curtilage with a declaration extending the curtilage to enable vehicular access across appellants’ land – perceived misapprehension as to matters relating to vehicular access – application to vary costs orders
COSTS – party/party – application for variation of costs orders – application for indemnity costs of motion
Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW) rr 36.16(3A), 42.1
Cases Cited: Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300; [1993] HCA 6
Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225; [1993] FCA 801
Evans v Smith [2025] NSWCA 102
J-Corp Pty Ltd v Australian Builders Labourers Federated Union of Workers (No 2) (1993) 46 IR 301; [1993] FCA 70
Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59
Majak v Rose (No 5) [2017] NSWCA 238
Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11
Power v Deputy Commissioner of Taxation (No 2) (2014) 98 ATR 75; [2014] NSWCA 77
Ranclose Investments Pty Ltd v Leda Management Services Pty Ltd (No 2) [2024] NSWCA 13
State of New South Wales v Hollingsworth (No 2) [2023] NSWCA 283
Category: Consequential orders
Parties: David John Evans (First Appellant)
Carolyn Anne Evans (Second Appellant)
Kenneth Linton Smith (First Respondent)
Office of the Registrar General (Second Respondent)
Representation: Counsel:
N Hutley SC with LW Chan (Appellants)
M Maconachie with M Summerhayes (First Respondent)
Solicitors:
Aubrey Brown Lawyers (Appellants)
Maher Legal (First Respondent)
Office of the Registrar General (Second Respondent) (Submitting Appearance)
File Number(s): 2024/00308533
Publication restriction: Nil
(3) In lieu [of orders 1,7 and 9 made on 8 August 2024 by the primary judge, which were set aside by this Court], declare that the respondent [Mr Kenneth Smith] is the rightful owner of so much of the land in Lot 41 DP 1003436 upon which the respondent’s house and its curtilage house sits (as identified in the plan attached (i.e., “Plan Sheet A” attached to the appellant’s 23 May 2024 offer) but extended to accommodate vehicular and pedestrian access from the respondent’s land to the Unformed Road).
… it is inconsistent with the concept of curtilage as land serving the purpose of the Smith house to confine the curtilage in the present case to an area that does not permit ready access between the Smith house and the Unformed Road on which the mill stood at all relevant times and which is the respondent’s property. Accordingly, we would adopt the area of the Smith house and curtilage on the plan accompanying the appellants’ open offer but with an extended curtilage covering a narrow access way perpendicular to the area of the Smith house and shed leading to the Unformed Road. Mr Hutley SC indicated that this would be an area of around 20 metres beyond the curtilage shown in the plan in the most direct perpendicular line between the two. We set out below a diagram of what we have in contemplation in that regard. The parties should have liberty to apply if there is any dispute as to how that area is to be noted on the relevant title documents.
Declare that the First Respondent is the rightful owner of so much of the land in Lot 41 DP1003436 upon which the First Respondent’s house and its curtilage sits (as identified in “Plan Sheet A” attached to the Appellant’s 23 May 2024 offer (“Plan Sheet A”)) but extended to accommodate vehicular and pedestrian access from the First Respondent’s land to the “Unformed Road” and to Ravensdale Road (such extension to be constituted by the 6 metre wide land segment referred to in the Amended diagram of Plan Sheet A attached to the Court’s reasons of 16 May 2025 and the land within the dotted red lines in Plan Sheet A). The parties have liberty to apply in connection with the consequences of this declaration
The first respondent also seeks a variation of the costs orders made by this Court, those being (Order 4) that the respondent (i.e., the first respondent) pay the appellants’ costs of the proceedings at first instance on the ordinary basis and (Order 5) that the respondent (i.e., the first respondent) pay the appellants’ costs of the appeal on the ordinary basis.
As is well-known, the power to recall or vary perfected orders under r 36.16(3A) of the UCPR is limited and only to be exercised with circumspection and in exceptional cases. The principle of finality of litigation is fundamental to the administration of justice (see Power v Deputy Commission**er of Taxation (No 2) (2014) 98 ATR 75; [2014] NSWCA 77 (Power) at [3]-[4]). It may be displaced in rare cases such as where there has been a material misapprehension of fact or law, or denial of procedural fairness (see Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300; [1993] HCA 6*; State of New* *South* W**ales v Hollingsworth (No 2) [2023] NSWCA 283 (Hollingsworth) at [17]-[22] and Ranclose Investments Pty Ltd v Leda Management Services Pty Ltd (No 2) [2024] NSWCA 13 at [5]). However, there is high bar to surmount on such applications. In Hollingsworth (citing Majak v Rose (No 5) [2017] NSWCA 238 at [12]) it was said (at [17]) that the power is only to be exercised in cases of “readily identifiable, readily rectifiable, inadvertent errors”; (at [18]) that what is required is more than mere dissatisfaction with the result; and (at [20]) that where the application proceeds on the basis of a “misapprehension”, what this means is “oversight and inadvertence” not “deliberate decisions which are said to be incorrect”.
Directions were made for the filing of submissions by the appellants in relation to the first respondent’s application and the parties were advised that the application would be dealt with on the papers.
These are our reasons for dismissing the application with costs. Abbreviations used in the appeal judgment, with which familiarity is here assumed, are adopted in these reasons.
The first aspect of the orders which the first respondent seeks to revisit is the location of the extended curtilage the subject of Order 3. The first respondent suggests that, in making Order 3, this Court (or, more accurately, it should be said the majority) proceeded under the misapprehension that this would permit access from the Smith house to the (former) mill and to Ravensdale Road, whereas that is not so.
In that regard, annexed to the first respondent’s written submissions is a document headed “Plan Sheet B” (based on the document which formed part of the appellants’ 23 May 2024 open offer of settlement, which was used by us to identify the scope of the declaration made in Order 3). Plan Sheet B is a copy of Plan Sheet A with an aerial image superimposed on it by the appellants’ surveyor, which reveals a number of tracks on the Contentious Land. The complaint that the first respondent makes is that the declaration made in Order 3 does not in terms extend to two of the tracks visible on Plan Sheet B (those marked in red and orange on Attachment 2 to the first respondent’s written submissions on this motion), in respect of which the appellants had offered to give the first respondent a right of way in their open offer.
The first respondent understands that the intent of the declaration in Order 3 was to declare him to be the rightful owner of certain land including the track between the Smith house and the “Unformed Road” highlighted in green in Attachment 2. The first respondent suggests we may have considered it unnecessary for the declaration to extend to the “red” or “orange” tracks either because they were within the boundaries of the “Unformed Road” or because the “Unformed Road” was, in fact, a road or track separate from the “red” track rather than a place where a road was contemplated to be built but was not in fact built. (Neither suggestion is correct, as we explain below.)
In any event, the first respondent submits that the declaration actually made by Order 3 does not reflect the Court’s apparent intent to declare him to be the rightful owner of land that would permit vehicular access from the Smith house to Ravensdale Road. The first respondent says that in order to access the Smith house from Ravensdale Road, it is necessary to use the “red” track (there being no vehicular access from Brush Creek Road) whereas the “red” track falls outside the land in respect of which he has been declared to be the rightful owner on the terms of the declaration as made and outside of the other land (the Unformed Road and Lot 1) in respect of which there was no contest that he was the rightful owner. Thus, it is submitted that, based on the current declaration, the first respondent cannot travel to his house by vehicle without the risk of being treated as a trespasser by the appellants.
The first respondent argues that, in the present case, the interests of justice outweigh the interests of finality; and submits that this state of affairs has arisen in connection with what he perceives to be a misapprehension on the part of the Court, being one not attributable solely to his neglect or default. He submits that this is not an inappropriate attempt by a disgruntled litigant to re-agitate (in the hope of obtaining a more favourable outcome) issues that have been determined against him (adopting the language used in ). Rather, he says that the present application assumes the correctness of the gravamen of the Court’s reasoning but that, on that reasoning and on an understanding of the facts uninfected by the “apparent misapprehension” of the Court, a different result to that which flows from the text of the Court’s declaration should ensue.
The submission that there was a misapprehension by us that the extended curtilage would permit vehicular access across the appellants’ land directly to Ravensdale Road (i.e., via the red track) is unfounded. References in our reasons to use of the Contentious Land for access to the mill and to Ravensdale Road (see for example at [42], [80], [89], [100], [102]) were in the context of considering the claim for adverse possession of the whole of the Contentious Land. That is a different issue from the question of what comprises the curtilage of the Smith house (as understood by reference to the purpose of the dwelling).
Where reference is made by us to the extended curtilage permitting access to the mill and Ravensdale Road, what we contemplated was that the extended curtilage would enable access from the Smith house to the Unformed Road (where the mill was formerly situated) and that, from there, access could be gained to Ravensdale Road. Certainly, there was an assumption that, once there was pedestrian or vehicular access to the first respondent’s own land (the Unformed Land and Lot 1), then the first respondent would have a means of access to Ravensdale Road but it was not our assumption that this access would be along the “red” and “orange” tracks over which a right of way had been offered (but not accepted). So much should have been clear from the diagrammatic description of the extended curtilage that we had in mind. It would in our view be outside the concept of curtilage for it to be found to comprise the tracks indicated on the proposed rights of way that the appellants had offered.
We were certainly not under any misapprehension that the access offered by the right of way that had been proffered by the appellants (and not accepted by the first respondent) was over tracks situated on the Unformed Land. The area of Unformed Road was clearly separate from those tracks. Nor were we under any misapprehension that the Unformed Road had ever been built (as the reasons themselves make clear). Since the Unformed Road has been found to be the property of the first respondent, no right of way along those tracks would have been necessary to be granted had they been within the area of the Unformed Road.
As the debate during the course of the appeal hearing made clear, we recognised that the finding as to adverse possession of the house and its curtilage (with which the appellants by the time of the hearing at first instance did not cavil) did not give rise to relief by way of the grant of rights of way across the appellants’ land (AT 75.15-43).
We accept that there may be a practical difficulty for the first respondent if he can no longer use the tracks highlighted “red” and “orange” on Attachment 2 to his submissions (that difficulty being that some other track will need to be formed or made to enable access to Ravensdale Road from the area referred to as the Unformed Road or from Lot 1 itself). However, the finding of an extended curtilage was based on what we considered was the access from the Smith house to the former mill (and thence Ravensdale Road) which could be inferred from possession and use of the Smith house over the period of adverse possession, not access across the area of the tracks visible on the respective Attachments to the submissions.
The second aspect in respect of which the first respondent seeks a variation of the orders made by us is as to the issue of costs. The first respondent submits that, irrespective of the outcome of the application for revision of Order 3, the question of costs should be revisited.
The first respondent notes that this question was not the subject of oral argument on the appeal. That is so. However, cost orders were sought by the appellants in their notice of appeal (both in respect of the first instance proceedings and of the appeal) and were the subject of written submissions by both parties (the first respondent similarly seeking costs in his favour both for the first instance hearing and on the appeal). So it cannot be suggested that the issue of costs was not in play. It was a matter for the parties whether they wished to make oral submissions on that issue. There was no request at the time of the hearing of the appeal for an opportunity to be heard orally on the issue of costs after judgment was delivered.
The first respondent submits that, as matters presently stand, the upshot of the present litigation is that he has achieved a result better than what the appellants offered (in their open offer) but worse than what he had sought. That may be so, in that the first respondent has the benefit of the declaration made as to the extended curtilage. However, nothing here turns on that.
The first respondent points out that it was not until written submissions were served briefly before the hearing at first instance that the appellants conceded that he was the true owner of the Smith house and its immediate surrounds. The first respondent submits that, given that late change in position of the appellants and the ultimate result having regard to the outcome of the appeal, he should not be required to bear the whole of the costs of the proceedings at first instance as Order 4 contemplates. The first respondent argues an order that each party pay its own costs at first instance and for a like order to be made (in lieu of Order 5) as to the costs of this appeal.
The appellants argue that there is no basis for the costs orders to be revisited. They submit that there are no exceptional or discretionary factors here that would justify a departure from the usual rule (that costs follow the event).
Further, if the present application does not succeed, the appellants seek their costs of the present application at least on the ordinary basis (invoking r 42.1 of the UPCR and citing Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59 and Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 for the proposition that costs are compensatory, not punitive, and that an unsuccessful party generally pays the successful party’s costs). They go further and submit that indemnity costs are warranted in the present case, on the basis that they have incurred additional costs to defend a hopeless application (citing (1993) 46 IR 301 at 303; [1993] FCA 70 per French J and *-* (1993) 46 FCR 225; [1993] FCA 801).
For the above reasons, we propose the following order:
The notice of motion filed on 30 May 2025 is dismissed with costs.
A****DAMSON JA: I have had the benefit of reading the joint reasons of Ward P and Stern JA for dismissing the first respondent’s application to vary order 3 (relating to the land of which the first respondent is the rightful owner) and order 4 (relating to costs). I agree with Ward P and Stern JA, for the reasons they have given, that neither order ought be varied and, accordingly, that the first respondent’s notice of motion filed on 30 May 2025 ought be dismissed with costs.
**********
Evans
Smith
(1993) 176 CLR 300
(1993) 46 FCR 225
(1993) 46 IR 301
(1990) 170 CLR 534
(1998) 193 CLR 72
The notice of motion filed on 30 May 2025 was dismissed with costs. The requested revision of Order 3 and variation of the earlier costs orders were refused. The appellants were not awarded indemnity costs of the motion. [22], [29]-[32]
Further, the first respondent submits that there is no other convenient forum for him to obtain that different result, on the basis that he has no right of appeal from this Court’s orders and, while he has a right to apply for special leave to appeal to the High Court, he says that such an application would likely require the invocation of the High Court’s rarely used “visitation” jurisdiction and that successful invocation of that jurisdiction is far from assured.
The appellants resist the first respondent’s application. They submit that the declaration as made accurately reflects the land in respect of which adverse possession was established, including necessary access to the Unformed Road; and they say that the suggestion that the orders render the respondents as trespassers is unsupported by the Court’s findings and is only hypothetical. The appellants say that no new evidence, procedural irregularity, or material oversight has been identified and hence they contend that there is no proper basis for re-opening the matter. The appellants emphasise in this context the central importance of the doctrine of finality in litigation, especially in land and proprietary disputes.
What [115] of our reasons contemplated was access from the Smith house to the Unformed Road (more precisely to the area of the former mill) since that was the access that we inferred the first respondent had over the period in which it was accepted that he had adverse possession of the Smith house and its curtilage. Insofar as we contemplated access perpendicular to the house and its curtilage to the Unformed Road, we did not have in mind that it would necessarily follow the curved “green” track but it would be consistent with our reasons if the area were to be identified as including that track.
Insofar as we contemplated liberty to apply if that were to be necessary for the area of the extended curtilage to be appropriately identified, that would in our opinion encompass a designation of the “green” track as the location of the extended curtilage (if, as Attachment 2 seems to suggest that be the sensible or more convenient route from the house to the Unformed Road) but no further. The revised orders now sought do not reflect that.
Accordingly, we reject the application to recall and vary Order 3.