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1. This proceeding involved a boundary adjustment to a number of blocks located in Oaks Estate in the ACT, to correct what appears to have been a surveying error now forming part of the register relating to land, established pursuant to s 43 of the Land Titles Act 1925 (ACT) (LT Act) many years ago.

2. The only active parties in the proceedings are the plaintiff, the first defendant and the fifth defendant.

3. The matter ultimately resolved by consent, and on 27 September 2024, the Court made the following substantive orders: (1) The boundaries between the land presently described in the ACT Land Titles register as: (a) Block 4 Section 14 Oaks Estate; (b) Block 22 Section 12 Oaks Estate; (c) Block 21 Section 12 Oaks Estate; (d) Block 20 Section 12 Oaks Estate; (e) Block 23-25 section 12 Oaks Estate; and (f) Blocks 1-2 section 15 Oaks Estate, Are DECLARED to be as shown in DP 2207, and replicated in the “Investigation Survey, Section 12” completed by the Office of the Surveyor- General on 16 September 2024, annexed to this order and marked “A”. (2) Pursuant to s 161 of the Land Titles Act 1925 (ACT), the second defendant is to correct the ACT Land Titles register to reflect the boundaries in order 1 above, making such other consequential corrections as are necessary. (3) The Registrar-General is directed to remove Caveat no. 3275972 from the title of Block 4, Section 14, Oaks Estate in the ACT.

4. The outstanding issue before the Court is costs.

Competing Positions

5. The plaintiff sought an order that the first defendant pay her costs up to 14 May 2024. That date was the date at which the first defendant made her position clear that she did not contest the rectification of the Land Titles register to correct the boundaries of the affected properties in which the plaintiff and the first and third to fifth defendants have an interest. The plaintiff argued the first defendant initially took an unreasonable position in seeking to deal with the error by a different means (namely, registration of a subsequent sub-division plan).

6. The first defendant opposed that order and sought that the Territory pay the costs of the proceeding, or alternatively that the Territory and the plaintiff pay a proportion of her costs. She argued that the Territory was the entity responsible for the registered plan that was in error, and that the plaintiff unreasonably opposed the removal of the caveat.

7. The Territory sought no order as to costs, to the intent that each party bear their own. Its position was that it was participating in the proceeding as a land holder, that the evidence did not prove that it was responsible for any previous error and further that it had actually incurred the costs of resurveying the area so as to bring about the resolution.

Applicable Principles

8. Costs are in the discretion of the Court: r 1721(1) of the Court Procedures Rules 2006 (ACT).

9. Such discretion is a very wide one, though it must be exercised judicially, in accordance with established principle and the statutory context: Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72 (Oshlack) at [35], [65].

10. The fundamental purpose of the discretion is to compensate the successful party, not to punish the unsuccessful party: EMI Songs Australia Pty Ltd v Larrikin Music Publishing Pty Ltd [2011] FCAFC 92 at [9]. A substantially successful party is entitled to recover its costs from the opposing party, because it is just and reasonable that the party who has caused the other party to incur costs should reimburse that party for the liability incurred: Oshlack at [135]; Latoudis v Casey (1990) 170 CLR 534 at 543 per Mason CJ, at 562-3 per Toohey J, at 566-7 per McHugh J.

11. Fairness is the touchstone. The result should be fair having regard to the particular facts and circumstances of the proceeding. “Ultimately, the Court is required to determine the appropriate order in the interests of justice”: Clarkson Williams Partners Pty Ltd v Vaughan (No 2) [2016] ACTCA 8 at [10], [12]. In other words, the court makes a “broad evaluative judgment of what justice requires”: Gray v Richards (No 2) [2014] HCA 47; 89 ALJR 113 at [2].

12. Also relevant, in the circumstances of this case, is the decision of Re Minister for Immigration & Ethnic Affairs; Ex Parte Lai Qin (1997) 186 CLR 622, where McHugh J said at 624-625 (citations omitted, emphasis added): In most jurisdictions today, the power to order costs is a discretionary power. Ordinarily, the power is exercised after a hearing on the merits and as a general rule the successful party is entitled to his or her costs. Success in the action or on particular issues is the fact that usually controls the exercise of the discretion. A successful party is prima facie entitled to a costs order. When there has been no hearing on the merits, however, a court is necessarily deprived of the factor that usually determines whether or how it will make a costs order. In an appropriate case, a court will make an order for costs even when there has been no hearing on the merits and the moving party no longer wishes to proceed with the action. The court cannot try a hypothetical action between the parties. To do so would burden the parties with the costs of a litigated action which by settlement or extra-curial action they had avoided. In some cases, however, the court may be able to conclude that one of the parties has acted so unreasonably that the other party should obtain the costs of the action. In administrative law matters, for example, it may appear that the defendant has acted unreasonably in exercising or refusing to exercise a power and that the plaintiff had no reasonable alternative but to commence a litigation. Thus, for example, in R v Gold Coast City Council; Ex parte Raysun Pty Ltd, the Full Court of the Supreme Court of Queensland gave a prosecutor seeking mandamus the costs of the proceedings up to the date when the respondent Council notified the prosecutor that it would give the prosecutor the relief that it sought. The Full Court said that the prosecutor had reasonable ground for complaint in respect of the attitude taken by the respondent in failing to consider the application by the prosecutor for approval of road and drainage plans. Moreover, in some cases a judge may feel confident that, although both parties have acted reasonably, one party was almost certain to have succeeded if the matter had been fully tried. This is perhaps the best explanation of the unreported decision of Pincus J in South East Queensland Electricity Board v Australian Telecommunications Commission where his Honour ordered the respondent to pay 80 per cent of the applicant's taxed costs even though his Honour found that both parties had acted reasonably in respect of the litigation. But such cases are likely to be rare.

13. The significance of the emphasised words is that those are the matters that I consider bear upon the circumstances of the present case.

What is in the interests of justice in the present case?

14. The Court had before it a number of affidavits, and a detailed schedule of the correspondence between the parties prior to, and during, the proceeding.

15. During oral argument, the Court was also taken to s 160 of the LT Act which deals with the circumstances where the Registrar-General is able to correct the register without the involvement of the Supreme Court, and s 161, which permits the Court to make an order correcting the register. The occasions for rectification without a court order are limited by other considerations set out in s 160, one of which precludes rectification by the Registrar-General if the correction “would affect rights acquired by an entry in the register in reliance on the uncorrected register”.

16. The starting point is that this is a matter that settled and was not fully heard on its merits.

17. Notwithstanding this, it is also a case where there was a clear error in the register, in that the registered plan did not reflect the true position as to the boundaries of the affected properties. The plaintiff has ultimately obtained orders which broadly reflect what she sought in commencing proceedings.

18. However, I am satisfied that the nature of the error and the relief sought in this matter was of a kind that was always going to require the imprimatur of the Supreme Court given the limitations of s 160 of the LT Act referred to above. This is not a case where the first defendant’s conduct left the plaintiff with no reasonable alternative but to commence the litigation.

19. The plaintiff’s view was that the first defendant adopted a mistaken and therefore unreasonable position as to whether a subsequent subdivision plan could supersede any previous registered plan that contained errors in the boundary descriptions. However, the fact that a party may take a different view or even be mistaken as to the appropriate means of rectifying a clear error in the register does not then mean that the conduct of the proceeding was “so unreasonable” that the party should pay the plaintiff’s costs.

20. Further, as the first defendant pointed out, the first defendant also had a degree of success in obtaining the removal of a caveat, which the correspondence indicated was a consistent request made by the first defendant and was refused by the plaintiff. Again, though, the refusal was not so unreasonable as to mean not only that the plaintiff should be deprived of her costs, but that she should pay any part of the first defendant’s costs, in circumstances where she had otherwise achieved substantive success.

21. Ultimately then, I am not persuaded on the material before the Court that either the plaintiff or the first defendant’s conduct was so unreasonable as to make it appropriate for either to bear each other’s costs or a portion of them in circumstances where the proceeding was settled. Both those parties were effectively in the same position, in that they owned property, the boundaries for which required rectification in the relevant plan held by the Registrar-General as part of the register.

22. In relation to the Territory, I accept that the evidence before the Court does not go so far as to establish that it was responsible for the initial error, nor do I consider that the Territory being responsible for maintaining the relevant documents means that it then must also bear the costs of any rectification application brought by private parties wherever there is an error identified in the register.

Conclusion

23. This is a case where the fairest course is to simply make no order as to costs, with the consequence that each party will bear their own. I so order.

I certify that the preceding twenty-three [23] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice McWilliam. Associate: Date: