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Legislation Cited: Civil Procedure Act 2005 (NSW), ss 98, 101
Uniform Civil Procedure Rules 2005 (NSW), r 42.1

Cases Cited: Avopiling Pty Ltd v Bosevski; Avopiling Pty Ltd v Workers Compensation Nominal Insurer (2018) 98 NSWLR 171; [2018] NSWCA 146
Drummond & Rosen Pty Ltd v Easey (No 2) [2009] NSWCA 331
Harrison v Schipp [2001] NSWCA 13
South West Helicopters Pty Ltd v Stephenson (No 2) (2018) 98 NSWLR 96; [2018] NSWCA 99
The Owners - Strata Plan No. 1954 v Ashdown Home Units Pty Ltd [2026] NSWSC 298

Category: Costs

Parties: Owners of Strata Plan 1954 (Plaintiff)
Ashdown Home Units Pty Ltd (Defendant)

Representation: Counsel:
J Morris SC / A Crossland (Plaintiff)
L Gor (Defendant)
Solicitors:
Jake McKinley (Plaintiff)
Collins Biggers & Paisley (Defendant)

File Number(s): 2020/00310786

JUDGMENT EX TEMPORE (REVISED)

Introduction

1. Following six years of litigation, on 31 March 2026 I gave judgment in this case where the Plaintiff owners corporation of an apartment block in Elizabeth Bay, Sydney, sued the corporate entity through which the neighbouring apartment block is operated as a company title. The cause of action was nuisance and it concerned a retaining wall on one side and a slope and stormwater drainage system on the other.

2. The details are set out in my reasons for judgment in The Owners - Strata Plan No. 1954 v Ashdown Home Units Pty Ltd [2026] NSWSC 298 (the primary judgment). This judgment assumes familiarity with the primary judgment and I will not repeat the details here.

3. The burden of the primary judgment is that the Defendant has been found not yet to have committed a nuisance and that any work which is presently required to the Plaintiff's retaining wall is a matter for it. However, I have found that given the importance of soil saturation to the future stability of the Slope, the fact that construction of the Defendant's apartment block has resulted in stormwater from about 76% of the Defendant's land being directed down the Slope and the inadequacies in the Defendant's stormwater system, both as to design and repair, there is a risk of future damage to the Plaintiff’s retaining wall resulting from the Slope becoming saturated and unstable. I further found that were that to happen, the Defendant will commit an actionable nuisance. The Defendant is using its land for a common and ordinary purpose but, because of the state of its stormwater system, it is not doing so in a way which reasonably minimises the extent of interference with the Plaintiff's right to use its land that will occur if the Slope fails.

4. Balancing the probabilities of the Slope failing and the consequences which will result if it does, I have found that this is a case where quia timet relief is to be granted. The Plaintiff sought a mandatory injunction which would require the Defendant to install soil nails on the Slope, but I do not think that is reasonable. The Plaintiff also sought an order that the Defendant install an adequate stormwater system so as to address future risk of the Slope becoming saturated. For the reasons given in the primary judgment, I have found that such relief ought to be granted. It is not ideal but in the circumstances, including the Defendant's failure to attend to its own stormwater needs, I have concluded that it is a reasonable and practical solution.

5. This judgment deals with the form of final orders, costs and interest on costs.

Orders giving effect to primary judgment

6. The Plaintiff has put forward a form of proposed orders to give effect to the primary judgment. Apart from a grammatical error in the chapeau to Order 1 and an amendment to Order 1(d) to make it clear that the easement which the Plaintiff is to grant to the Defendant to drain its stormwater across the Plaintiff's land is to be on terms that future maintenance, service, and repair obligations are to be borne in equal proportions (which is not disputed), I agree that the Plaintiff's proposed form of orders accord with the reasons in the primary judgment.

7. There are some additional matters which have arisen from the parties' submissions which need to be addressed.

8. The Defendant has made a number of submissions about other changes to the Plaintiff's proposed orders, most of which reflect a different drafting style. The Defendant favours a more prescriptive approach. As a general principle, it is important that court orders, especially mandatory injunctions, be expressed with clarity and with necessary precision. Nonetheless my concern with the Defendant's proposed orders is that they do not allow the sufficient flexibility which is required given the subject matter of the task so ordered nor do they account for a number of areas of imperfect knowledge, like what is under the ground in the Lot 65 strip.

9. The orders I will make include liberty to apply for further orders or directions to give effect to the orders, which will provide a mechanism if a want of specificity cannot be resolved by the agreement of the parties. The liberty to apply will be granted to both parties. It is intended to be a liberal liberty although, of course, the parties will make their own assessment about risk as to costs when choosing to exercise it and it is hoped that in future there will be more agreement between the parties than previously.

10. The orders require the Defendant to act expeditiously in performing the stormwater work which is necessary to forestall the risk of interference with the Plaintiff's land. The Defendant seeks to have that obligation tempered by the word "reasonably". I do not see why the Defendant ought not to be required to attend to the task the subject of the orders expeditiously when the orders require the Defendant to do no more than to attend to its own stormwater disposal in a reasonable way, having regard to its neighbour's right to enjoy its own land. If the Defendant is not willing to make arrangements other than by order of the Court, then it should be required now to attend to those arrangements expeditiously. In any event, the work is for the benefit of the Defendant because it will ensure that the Defendant has an adequate and lawful stormwater drainage system. The fact that the Defendant is an entity through which an apartment block is operated as a company title will give context to the meaning of the word expeditiously as it appears in the orders if, in the future, a dispute arises, but I do not see why any further allowance is necessary.

11. The Defendant's submissions in the case brought into focus a potential issue which may or may not arise. The issue having been raised, the primary judgment addressed two issues about the Defendant's stormwater after it is deposited onto the Plaintiff's land, namely the width of the pipe across the Plaintiff's land and an easement from the Plaintiff’s land across the land of third parties by which it may thence lawfully be drained to The Esplanade. In the primary judgment, I referred to the third party’s land as the Lot 65 strip, which expression is meant to be convenient rather than precise or prescriptive. Rather than impose upon the Defendant the burden of obtaining any necessary easements over the Lot 65 strip from third parties with the uncertainties which may entail, I will order that the Defendant's other obligations be contingent upon the Plaintiff first obtaining any such easements with the costs to be shared pro rata.

12. The Defendant's costs submissions raise another issue which is whether physical work may be required within the Lot 65 strip to accommodate the increase in the size of the pipe on the Plaintiff's land to 150mm, as necessitated by the inflow of the Defendant's stormwater. The evidence does not reveal whether any such work will be necessary. If such work is required, the Plaintiff submits that the Defendant should bear the cost. The Defendant submits that the work is part and parcel of obtaining the easement over the Lot 65 strip, so the cost of the work should be split between the parties in the same way as the costs of obtaining any necessary easement. After hearing from the parties, I am persuaded that the cost of any such work cannot fairly be decided until and unless the circumstances of such work become known. If work is required in order to accommodate the enlargement of the pipe on the Plaintiff's land to 150mm, my present inclination is that the Defendant ought to be ordered to perform the work and bear the expense of it. However, work may be required for other reasons. In those circumstances, I will not now make any order about performing or paying for the work beyond that contemplated at [255] of the primary judgment. I will also make explicit in the reservation of liberty to apply that the liberty may be exercised in relation to this issue.

13. The Defendant seeks an order that the Plaintiff cooperate with the Defendant to obtain an interim easement pending the Plaintiff granting a permanent easement as part of the condition that the Defendant upgrade the 100mm pipe on the Plaintiff's land. The need for an interim easement is not demonstrated. The Defendant has been content merely to deposit its stormwater onto the Plaintiff's land for at least the last 30 years. The Plaintiff has offered to grant a permanent easement without compensation. If the Defendant requires more than that, it is free to negotiate with the Plaintiff.

14. As explained in the primary judgment, the requirement that the Plaintiff obtain any necessary easement over the Lot 65 strip as a precondition to the Defendant's obligation to undertake drainage work is intended to relieve the Defendant of obligations arising from that task other than as to sharing the expense. I was concerned that the Defendant may regard it as objectionable for the Court to order the Defendant to deal with third parties considering the uncertainties that may entail (primary judgment at [235]-[236]). The Defendant seeks to have that condition imposed on terms which permit it to participate in the process, and to give it a measure of control over the Plaintiff's work to fulfil the condition. The submission does not accord with the frame of the orders and the reasons in the primary judgment. If the Defendant is willing to assume the obligation to obtain any necessary easements over the Lot 65 strip then the objection to it being ordered to do so by the Court is absent.

15. On the whole, I think the imposition of the condition precedent to be performed by the Plaintiff is more likely to lead to a workable solution.

16. The structure of the orders will be that the Defendant's obligations under the orders will not arise until the Plaintiff has obtained any easement or easements necessary lawfully to convey stormwater from both parties' land to The Esplanade. Either the Plaintiff will attend to that task or it will not. If there is a dispute, it can be adjudicated by the Court. It is to be hoped that any such potential dispute might be resolved by agreement, especially in circumstances where the Defendant will obtain a benefit from the fulfilment of the condition as a means of addressing the disposal of its stormwater.

17. The Defendant submits that efficiency and economy would be served if the Plaintiff were to be obliged to obtain three quotes from professional advisors (all of whom must be newly selected and unconnected with the present litigation) and to consult regularly with the Defendant. I do not agree. As a party paying one third of the costs, I consider the Plaintiff will have every interest to act as efficiently and economically as possible and, from my perspective of the conduct of the litigation, the less the parties are obliged to agree with each other the more efficient the process is likely to be.

Costs

18. The next issue is costs.

19. Pursuant to s 98 of the Civil Procedure Act 2005 (NSW), the power to make a costs order is in the discretion of the Court. The discretion is to be exercised judicially and having regard to Part 42 of the Uniform Civil Procedure Rules 2005 (NSW).

20. UCPR 42.1 provides:

42.1 General rule that costs follow the event

Subject to this Part, if the court makes any order as to costs, the court is to order that the costs follow the event unless it appears to the court that some other order should be made as to the whole or any part of the costs.

21. Application of that rule requires in the first instance the determination of the event. The event may be regarded as the practical result of the proceedings: Avopiling Pty Ltd v Bosevski; Avopiling Pty Ltd v Workers Compensation Nominal Insurer (2018) 98 NSWLR 171; [2018] NSWCA 146 at [172] (Payne JA, McColl and White JJA agreeing).

22. The practical result of the proceedings is that I will make orders in favour of the Plaintiff. The orders will be quia timet injunctive relief. In general terms, the orders will accord with Prayer 1 for relief in the Third Further Amended Statement of Claim. The orders will not match all of the specifics of Prayer 1, which refers to "drainage, slope stabilisation and modification and plumbing works”, but they will fall within that which was contemplated. This suggests that the event is that the Plaintiff has succeeded.

23. The Defendant submits that the event is otherwise. A number of points are made.

24. First, the Defendant submits that the final orders in favour of the Plaintiff will be “conditional” on the Plaintiff first obtaining certain easements over the Lot 65 strip. The submission correctly describes the form of the order but not the substance, nor does it have sufficient regard to the primary judgment. Imposing the condition to be performed by the Plaintiff is an indulgence granted to the Defendant so that the Defendant is not itself required to obtain the easement. The imposition of the condition does not affect the practical result of the litigation and it does not provide a basis to relieve the Defendant of the costs liability it would otherwise have.

25. The Defendant further submits that the case pleaded by the Plaintiff has failed, and that the Plaintiff has only succeeded by reason of orders being made in response to an unpleaded case. I do not understand the submission. The Defendant's gutters and stormwater pipes are pleaded in paragraph 2E of the Third Further Amended Statement of Claim. The flat area at the rear of the Defendant's apartment block and the absence of drainage is pleaded in paragraphs 5, 6 and 7.

26. Paragraph 8 is in the following terms:

“The Ashdown Stormwater Pipes, in combination with the construction of the Flat Area works that have been constructed on the Defendant's Land do not permit adequate, safe or effective drainage from the Defendant's Land and they permit water from the Defendant's Land to flow onto the slope and saturate the soil leading to the movement or instability of the slope.”

27. The particulars include a reference to the report of Mr Rahman, which includes specification of the remedial work which the Defendant is to be ordered to undertake.

28. In paragraph 9 of the Third Further Amended Statement of Claim it is alleged that by reason of the matters pleaded in paragraph 8 (amongst other things):

29. rainfall which would properly be drained from the Defendant's land were the drainage constructed correctly has inundated and will continue to inundate the Slope;

30. saturation of the soil is causing or will cause further instability or movement of the Slope;

31. saturation of the soil is causing damage and failure to the Plaintiff's retaining wall; and

32. there is an immediate risk of failure of the retaining wall in the event of heavy rainfall and/or failure of the Defendant's stormwater pipes so that they discharge water on to the Slope.

33. In Section E of the Third Further Amended Statement of Claim, it is alleged that these matters constitute a nuisance. As I have already said, Prayer 1 sought the relief which the Plaintiff successfully persuaded the Court to grant in its favour.

34. It is true that the pleaded case is larger than that on which the Plaintiff has succeeded because it includes a claim that a nuisance has already been committed by reason of existing damage to the Wall and a claim for damages. That is true but it does not mean that the case based on future damage is not pleaded.

35. It may be that by its submission that the Plaintiff has succeeded on an unpleaded case, the Defendant means that the relief to be granted to the Plaintiff will require the Defendant to concern itself with matters beyond the boundary of the Defendant's own land, namely the work to be done on the 100mm pipe across the Plaintiff's land and beyond that any easement and drainage work (if any) to be attended to on the Lot 65 strip.

36. These matters do not warrant the practical result of the case being viewed other than the Plaintiff's success on the pleaded case. Apart from the Plaintiff's interest in an easement on the Lot 65 strip, none of the matters beyond the boundary of the Defendant's land are for the benefit of the Plaintiff. They are incidents of the Defendant having a requirement lawfully to dispose of its own stormwater in circumstances where it has not in recent years attended to that obligation.

37. In any event, at the hearing the Defendant submitted that the relief ought not be granted to the Plaintiff because of uncertainties about the drainage right across the Plaintiff's land and the Lot 65 strip (e.g., Defendant's closing submissions dated 22 October 2025 at paragraph 69.3 and elsewhere). Having positively erected the issue as a barrier to the Plaintiff's success, it is not open to the Defendant to complain that the orders to be made address the issue.

38. For these reasons, the event of the litigation is that the Plaintiff has succeeded and the question then is whether there are grounds upon which it appears to the Court that some other order ought to be made.

39. As will be apparent from the above, and from the reasons in the primary judgment, the Plaintiff has not succeeded on all points.

40. As the Defendant submits, the Plaintiff came to Court to prove that the Slope was unstable, the Slope had moved and had damaged the Wall. It failed to do so. It also sought an order the Defendant install soil nails on the Slope which will not be made. The Defendant rightly submits that it has had a measure of success.

41. In view of that success, the Defendant submits that the Plaintiff ought to be ordered to pay its costs. That would not be a reasonable exercise of the Court's discretion. The Defendant alternatively submits that each side ought pay its own costs, or that the Defendant ought to be ordered to pay only 30% of the Plaintiff's costs.

42. As the Defendant correctly describes the task, the Court is required to make an impressionistic assessment. The Defendant emphasises that the costs which will be a subject of the orders are not just those of the trial at the end of 2025 but all the costs of the proceedings which were commenced by the Statement of Claim filed in 2020.

43. In the original Statement of Claim, the Plaintiff sought relief in addition to that brought to trial, including the imposition of an easement over the Defendant's land to permit amongst other things the erection of an adequate retaining wall. By the Amended Statement of Claim filed on 9 June 2023, the Plaintiff abandoned that part of its case. It is to be observed, however, that the grant of leave on 2 June 2023, pursuant to which the Amended Statement of Claim was filed, was given on terms that the Plaintiff pay the Defendant's costs thrown away by the amendment. That costs order remains and will remain undisturbed. There is no suggestion that any existing costs order ought to be vacated.

44. The Defendant also points out that from at least the second iteration of the Statement of Claim which was filed on 17 December 2020, the Plaintiff has alleged that the Wall was partly on the Defendant's land which is not correct, as finally established by the expert's surveying evidence adduced in the proceedings. The Defendant points out other aspects of the case on which the Plaintiff has failed, the foregoing being no more than prominent examples.

45. This is not an appropriate case for a costs order to be made referable to some identifiable issues and not others because there is a significant overlap. Most importantly, whilst the Plaintiff failed to prove that the Slope has moved and that it is presently unstable, the evidence of the geotechnical engineers on those topics went directly to the question of whether the Slope is vulnerable to failure in the future and if so the cause of that vulnerability. The issue about the installation of soil nails was discrete and very little was said about it at trial.

46. Overall, I do not think that the trial would have taken exactly the same amount of time if it was limited to the risk of future instability and damage, but I do not think that it would have been materially shorter. There may have been some savings on interlocutory proceedings over the last six years.

47. Ultimately, I have decided that the Defendant is to be ordered to pay 80% of the Plaintiff's costs, that being a reasonable proportion of the expense to which the Plaintiff has been put in order to obtain relief in these proceedings. A costs order is compensatory not punitive: Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 at [67] (McHugh J); Nadilo v Eagleton [2021] NSWCA 232 at [6] (Brereton JA). Doing the best I can on an impressionistic assessment, that is the conclusion I have reached.

48. The Plaintiff has made a number of submissions about the necessity for it to bring litigation because of the Defendant's failure to engage with the Defendant over the preceding decade. I do not consider that to be a relevant consideration beyond the fact that the litigation was brought and I have not taken it into account in the foregoing assessment. An order for costs is compensation for the conduct of the litigation. Anterior conduct by the parties will rarely be relevant: Harrison v Schipp [2001] NSWCA 13 at [134]-[136] (Giles JA, Handley and Fitzgerald JJA agreeing). I should point out what I have just said is my paraphrase of the Plaintiff's submission. I have not made any finding about either parties' pre-litigation conduct in relation to the other party beyond those in the primary judgment.

49. The Defendant also relies on correspondence between the solicitors in December 2024 and subsequently a telephone conference by which the Defendant proposed that all issues be referred to expert determination, apparently to be binding.

50. The Defendant is to be applauded for thinking outside the square and ought not to be discouraged from trying again in another case. However, I do not think the Plaintiff can be criticised for its response to that proposal having regard to the time at which it was made and the work that had already been undertaken to prepare this case for hearing by the Court. In any event, the Defendant's offer was on terms that the proceedings be dismissed and that the Plaintiff pay the Defendant's cost. Those terms deprive the Defendant's offer of probative value on the question of the costs order to be made now because the result from the Plaintiff’s perseverance with the case is an outcome more favourable to it.

51. Finally on the question of costs, the Defendant submits that, in effect, costs ought to be reserved until such time as the Plaintiff's fortunes in fulfilling the condition of obtaining any necessary easement over the Lot 65 strip become known. If the condition, which the Plaintiff had indicated a determination to fulfil, cannot be fulfilled for one reason or another, then the question of its success in the case may appear in a different light.

52. I do not agree that this is the appropriate way to exercise the costs discretion. I found that relief ought to be granted to the Plaintiff. If that relief is yet to be frustrated by the circumstances of a third party, then I do not think that for that reason the Defendant ought to be relieved of its liability to compensate the Plaintiff for the costs it has incurred in bringing these proceedings.

Interest

49. The last issue which arises is that the Plaintiff seeks an order under s 101(4)-(5) of the Civil Procedure Act that the Defendant pay interest on costs. Those provisions provide as follows:

101 Interest after judgment

…

(4) Unless the court orders otherwise, interest is payable on an amount payable under an order for the payment of costs.

(5) Interest on an amount payable under an order for the payment of costs is to be calculated, at the prescribed rate or at any other rate that the court orders, as from the date the order was made or any other date that the court orders.

50. The Plaintiff submits that the Court ought to depart from the default position under s 101(5) and order another date on which interest is to be paid on the costs they have incurred, namely the date upon which they paid the costs over the last six years.

51. The Plaintiff relies on Drummond & Rosen Pty Ltd v Easey (No 2) [2009] NSWCA 331 at [3]-[4], where Macfarlan JA (with whom Tobias JA agreed) said that in the absence of any countervailing discretionary factor, it is appropriate that an order for interest on costs be made to compensate the party having the benefit of a costs order for being out-of-pocket in respect of the costs it has paid.

52. Section 101 has been amended since the Drummond decision, but as the Court of Appeal explained in South West Helicopters Pty Ltd v Stephenson (No 2) (2018) 98 NSWLR 96; [2018] NSWCA 99 at [33] (Basten, Leeming and Payne JJA), the amendments do not deprive the Court of the discretion to order that interest on costs be paid from a date prior to the date of the order including the date on which the costs were paid by the party in whose favour the cost order is made. The justification for backdating the date from which interest is to be calculated is to reflect the economic burden of the payment of costs by the successful party.

53. The Plaintiff, being the owner of a strata scheme, has in all probability funded the litigation by raising special levies from the 17 apartment owners to which reference was made in the primary judgment. There is no suggestion that the Plaintiff has had to borrow money to fund the litigation and hence pay interest to a third-party lender. The economic burden has fallen on the 17 apartment owners. They have been out-of-pocket. It may be accepted that an order for interest on costs to be paid will give rise to a pool in the hands of the Plaintiff from which the 17 apartment owners would be compensated for bearing the economic burden as envisaged in Drummond.

54. The Defendant put forward six reasons why interest ought not to be ordered on costs from a date before the orders are made today. The first reason is said to be that the Court needs evidence of payment of costs. The submission is inconsistent with what the Court of Appeal said in South West Helicopters Pty Ltd v Stephenson (No 2) at [42]. In any event, if the costs have not been paid, then the Defendant will not be prejudiced by an order that interest be calculated from the date of payment.

55. The second reason put forward by the Defendant is that the Plaintiff is a non-commercial litigant, and given that there is no suggestion that it has funded the litigation by taking out an interest-bearing loan, it itself will not have paid interest on the costs it has incurred. There may be cases where that is a relevant consideration, but here the economic burden is of a different nature, as I have explained, and that burden might also fall within the justification for which the calculation of interest on costs might be backdated.

56. The third reason put forward by the Defendant is that the Plaintiff has delayed in the conduct of the litigation. The litigation was commenced six years ago. There were numerous amendments to the Statement of Claim, which amendments were continuing in 2025. Some of the amendments were significant such as the abandonment of substantive claims, although, as I have indicated above, at least in June 2023, the amendment was on terms that the Plaintiff pay the Defendant's costs thrown away. The Defendant also points to a delay by the Plaintiff in serving its evidence in chief and time consumed with an application for separate questions which was dismissed albeit with a costs order against the Plaintiff.

57. I consider that the delay in the conduct of the case is a weighty consideration in this issue. Whilst unsuccessful interlocutory applications by the Plaintiff have been dismissed with costs, and leave to amend granted on terms which protect the Defendant against wasted costs, the Defendant's submission is directed to the effluxion of time caused by such matters which unfairly may increase the interest burden on the Defendant if it is ordered to pay interest. It is not possible on the material to form a clear view about relative responsibility for the delay in the conduct of the litigation. For example, some delay was caused by the inability of Mr Rahman and Dr Burman to continue as witnesses in circumstances for which the Plaintiff cannot be criticised. The Defendant has, for its part, also taken time to prepare its evidence, an example of which is Mr Brown's First Report which was served on 31 July 2024, a date eight months after Mr Rahman's report was served. In considering the significance of the delay, the issue must be viewed in a practical way. Whilst the proceedings were commenced six years ago, in the ordinary course most of the expense which the Plaintiff has had to bear would have arisen much more recently. Nonetheless, I consider the delay a material consideration.

58. The fourth reason put forward by the Defendant as to why there ought not be an order that interest be paid on costs from the time the costs were paid by the Plaintiff is that the Plaintiff has failed on significant issues. That is not a relevant consideration to the time from which interest is to be paid. It goes to the question of the costs on which interest is to be paid and not the interest itself, and it has been dealt with above.

59. The fifth reason put forward by the Defendant is that some of the Plaintiff's costs were unnecessary. To the extent that the Plaintiff has failed in interlocutory applications, the Defendant is already protected from unnecessary costs of the Plaintiff by existing costs orders. To the extent that the Plaintiff has failed on issues at the trial, the Defendant is already protected by my decision to award the Plaintiff only 80% of its costs.

60. The sixth reason put forward by the Defendant is that it was not notified that an application would be made under s 101(5) that interest be paid on costs from the time they were paid by the Plaintiff. There may be cases where that is a material consideration but I do not consider it material in this case given that the Defendant has been adequately represented throughout.

61. Another matter which I think is relevant to this question is that there have been a number of important cost orders in the Defendant’s favour, the purpose of which are to compensate the Defendant for costs it has incurred relating to the subject matter of those costs orders. I have referred to some of those, including costs thrown away by reason of amendment and the unsuccessful application for separate questions. In the ordinary course those costs orders would not yet have been satisfied by the Plaintiff. Were I to make an order under s 101(5) that the Defendant pay interest on the Plaintiff's costs to be backdated to the date when the Plaintiff incurred its costs, there may be a result of different treatment between the parties in relation to costs incurred in the past.

62. I do not mean to prescribe a rule of universal application but, having regard to important costs orders made in the Defendant's favour for which it will not be receiving interest on costs, and having regard to the delay or the measure of delay in this case, I have come to the view that this is not an appropriate case otherwise to order under section 101(5).

63. For those reasons, the orders of the Court are:

64. Upon the Plaintiff obtaining by 1 April 2027 any easement or easements necessary lawfully to convey stormwater from both CP/SP1954 (the Plaintiff’s Land) and 1/79741 (the Defendant’s Land) into the existing stormwater drain or drains on The Esplanade (being the street identified in Annexure “A” to these orders), the Defendant, expeditiously and at its own cost, is to:

(a) instruct suitably-qualified professionals to prepare engineering drawings (for compliance with all relevant standards, including Australian Standards (AS) and the Building Code of Australia (BCA)) for the stormwater works in Figure 16 of the Report of Aminur Rahman dated 24 November 2023, subject to the matters agreed in the Joint Report of Mr Kielniacz and Mr Brown dated 19 December 2024 (Stormwater Works); (b) serve a copy of the instructions in Order 1(a) and the resulting drawings on the plaintiff; (c) do all things necessary, including obtaining any necessary consents, to construct the Stormwater Works; and (d) with the co-operation and consent of the Plaintiff (including the grant of any necessary easement, such easement to be on terms that future maintenance service and repair obligations to be borne in equal proportions), do all things necessary to upgrade the pipe on the Plaintiff’s land to which the Stormwater Works are to be connected, to 150mm.

2. The Defendant is to pay 63 percent of any costs and expenses incurred by the Plaintiff, including any legal costs, adverse costs orders and any compensation paid to any third party, in obtaining any easement or easements necessary lawfully to drain stormwater from both the Plaintiff’s land and the Defendant’s land to the existing stormwater drain or drains on The Esplanade.
3. The Defendant is to give all reasonable assistance to the Plaintiff (including providing any information and executing any documents as may be reasonably necessary) to obtain the easement or easements referred to in Order 1.
4. The Plaintiff has liberty to apply by notice of motion and supporting affidavit for an extension of the time limit in Order 1 upon a reasonable basis being shown.
5. The parties have liberty to apply for further orders or directions to give effect to these orders, including without limitation, in relation to the cost of any pipe work beyond the Plaintiff’s land.
6. The Defendant to pay 80% of the Plaintiff’s costs of these proceedings on the ordinary basis.
7. Pursuant to s 101(4) and (5) of the Civil Procedure Act 2005 (NSW) (CPA), interest is to be paid on the amount payable under Order 6 at the rate prescribed by the UCPR for the purposes of s 101 of the CPA, from the date of this order.

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annexure A