On 18 December 2018, I published my reasons (the Principal Reasons [1] ) for concluding that the plaintiff is entitled to judgment against the defendant in the sum of $16,710.59 as damages for nuisance. The parties had requested that the question of costs be deferred for further argument once my conclusions had been published. Accordingly, I made no orders but gave directions for the parties to make submissions on the question of costs in the light of the conclusions that I reached. I have now received both written and oral submissions from the parties. In these reasons, I shall use terms as defined in the principal reasons.
[3]
Contentions of the Parties
Ms Turvey contends that Ms Crotti's conduct in the conduct of the proceedings warrants an award of costs in her favour on the indemnity basis. She asserts that the proceedings were continued by Ms Crotti in wilful disregard of known facts or clearly established law and made allegations that ought never to have been made and unduly prolonged the case by groundless contentions. She contends that she incurred considerable costs by what she characterises as Ms Crotti's "high handedness" and disregard of Ms Turvey's rights in erecting gates over the Access Road, Ms Crotti's deceitfulness in asserting that she had been told that the Access Road belonged to her, and Ms Crotti's "misconduct in the litigation". Ms Turvey asserts that, but for those matters, considerable costs could have been avoided and that Ms Crotti's conduct immediately prior to and at the hearing caused much of those costs to be thrown away. She claims that she can be properly compensated only by an order for costs on the indemnity basis.
Ms Crotti, on the other hand, seeks orders that Ms Turvey pay her costs of the proceedings or, in the alternative, an order that each of them bear her own costs. Ms Crotti also contended that, if the Court proposed to order her to pay Ms Turvey's costs, the Court should specify a maximum sum that may be recovered by Ms Turvey for her costs. She relies on the fact that, prior to the hearing, she served three offers of compromise in which she indicated that she would not object to an application being made by Ms Turvey for a right-of-way over the Access Road and proffered an undertaking not to erect any gates, structures or signage beyond the boundaries of her own property and not to perform any other act that might interfere with Ms Turvey's right-of-way. In fact, Ms Crotti removed all three of the gates and signage that constituted nuisance and restored the bushman's style gate on the eastern boundary of Lot 1001 that afforded access from the Access Road to the Turvey Land.
[4]
The Dispute and the Proceedings
Having regard to the nature of the contentions advanced on behalf of Ms Turvey, it is necessary to recount some aspects of the generation of the dispute that led to the proceedings and the conduct of the proceedings. In that regard, Ms Turvey relies on an affidavit sworn by Mr Southwell-Keely on 4 February 2019 and Ms Crotti relies on affidavits sworn by Mr Steven Griffiths on 11 December 2018 and Ms Ourania Konstantinidis sworn on 5 February 2019. Mr Southwell-Keely swore a further affidavit on 1 March 2019 in response to the affidavits relied upon by Ms Crotti.
In the Principal Reasons, I described the Access Road and the acquisition by Ms Crotti of Lot 104, which adjoins Lot 1001 and abuts on the Access Road. I then described the nuisance, which consisted of the erection of padlocked gates across the Access Road. That occurred after Ms Crotti became aware of proposals by Ms Turvey to sell the Turvey Property, through the agency of the Agent, towards the end of 2015.
On 4 December 2015, Carter Ferguson wrote to Ms Crotti enclosing, amongst other things, a copy of Drawing 127183 and a copy of DP 880285. The letter asserted that the Access Road had been used as of right by Ms Turvey's predecessors in title for over a century openly. The letter requested Ms Crotti to remove the gates and to provide an undertaking to do so in the form enclosed with the letter. Ms Crotti did not respond to the letter and, on 8 January 2016, Owen Hodge wrote again to Ms Crotti, enclosing a copy of the letter of 4 December 2015. When Ms Crotti did not respond to the letter of 8 January 2016, an application to the Registrar-General to record a subsisting interest on the qualified folio issued in respect of Lot 1001 was prepared by Owen Hodge and lodged with the Registrar-General, bearing the date 27 May 2016. On 9 November 2016, edition No 3 of the folio in respect of Lot 1001 was issued by the Registrar-General in consequence of that application.
Ms Turvey commenced these proceedings by summons filed on 21 October 2016. On 22 November 2016, Messrs Bartier Perry, who were then acting for Ms Crotti, wrote to Owen Hodge in response to a letter of 4 November 2016 written to Ms Crotti. Bartier Perry asserted that Ms Turvey had no cause of action against Ms Crotti because, at the time of the claimed nuisance, Ms Turvey did not have an enforceable legal right to use the Access Road and that Ms Turvey at all times had vehicular and pedestrian access to her land by way of an alternative access.
The letter of 22 November 2016 stated that, without admission as to any legal obligation to do so, Ms Crotti had removed all three gates, signage and had restored the bushman style gate in its original location. The letter then offered to resolve the dispute on the basis that:
Ms Crotti would not object to Ms Turvey's application for a right-of-way over the Access Road subject to a reciprocal undertaking in relation to any application lodged by Ms Crotti for an identical right-of-way;
Ms Crotti would undertake not to erect any gates or other structures or signage beyond the boundaries of her property or to perform any other act that would interfere with Ms Turvey's right-of-way;
Ms Crotti would reimburse Ms Turvey for her lost marketing costs of $5,929; and
the proceedings be dismissed.
The letter said that, if the offer was not accepted, directions would be sought that the proceedings continue on pleadings.
When the proceedings came before Darke J for directions, his Honour noted an undertaking given to the Court by Ms Crotti, without any admission, that she would not re-erect any of the gates referred to in the summons prior to judgment in the proceedings or the dismissal of the proceedings.
Ms Turvey filed her statement of claim on 22 December 2016 and, on 29 February 2017, Ms Crotti filed a defence in which she asserted that there was no easement registered as belonging to the Turvey Property and that there was no easement registered as burdening the Access Road. On 20 April 2017, Owen Hodge wrote to Dentons in relation to the defence, enclosing an extract from the 1853 Conveyance and a copy of the Curramore Estate Plan. The letter invited Mrs Crotti to amend her defence withdrawing the denial of the existence of an easement. Dentons replied on 10 May 2017 saying that Ms Crotti would not be filing an amended defence in circumstances where she was "responding to the wording used" in the statement of claim. The letter asserted that there was no "express easement" in the 1853 Conveyance and invited Ms Turvey to amend her statement of claim "to correctly reflect the express wording" of the 1853 Conveyance.
Also on 20 April 2017, Owen Hodge wrote to Dentons putting forward a proposal for settlement whereby:
Ms Crotti would undertake not to interfere with Ms Turvey gaining access on to and egress from the Turvey Property via the Access Road;
Ms Crotti would undertake not to re-erect the gates or any like gates;
Ms Turvey would discontinue the proceedings and release Ms Crotti from any further claims; and
Ms Crotti would pay Ms Turvey the sum of $80,000, being $65,000 for the substantive claim and $15,000 on account of costs.
The Offer was to remain open for acceptance for 14 days. It was not accepted.
On 16 October 2017, Ms Crotti made an offer of compromise on the basis that she would pay Ms Turvey the sum of $10,000, the proceedings would be dismissed and each party would pay her own costs of the proceedings. The offer was to remain open for 28 days. It was not accepted.
On 7 December 2017, Owen Hodge wrote to Dentons referring to the documentary title to the Access Road. The letter suggested that it would not be appropriate for the parties to incur the expense of obtaining expert reports that might be relevant to an application for relief under s 88K of the Conveyancing Act 1919 (NSW). The letter then said that Ms Crotti's title searcher had accepted that there was in fact an easement for a right-of-way over the Access Road appurtenant to the Turvey Property and called on Ms Crotti to acknowledge the easement as being appurtenant to the Turvey Property and to withdraw the paragraph of the defence that denied the existence of the easement for right-of-way.
On 13 December 2017, Owen Hodge sent an email to Dentons proposing directions to be given on 15 December 2017. The letter referred to Ms Crotti's denial, in her defence, of the existence of a registered easement and pointed out that, in the defence, Ms Crotti did not admit that she had failed to give, on a final basis, an undertaking not to re-erect the gates on the Access Road. The email said that Owen Hodge had no record of any such undertaking having been given.
On 15 December 2017, Owen Hodge wrote to Dentons, referring an affidavit sworn by Ms Crotti on 13 November 2017 in which she asserted that the Turvey Property was accessible by an unsealed road. The letter asserted that that was "patently wrong" and that, while on some historical plans there may be a reference to a road, Ms Turvey's legal right to use that road was "in the highest level of doubt". The letter said that, in any event, there was no road physically in place through densely forested country that could be used for access to the Turvey Property. The letter invited Ms Crotti to abandon the assertion in her affidavit. The letter said that, unless written advice to the contrary was received by 20 December 2017, it would be assumed that Ms Crotti was not abandoning her assertion, in which case advice concerning the issue of such access would be sought from a road engineer, who was on standby. The letter threatened a claim for indemnity costs in respect of any report by the road engineer. There was no response to the letter on behalf of Ms Crotti.
Owen Hodge subsequently obtained a report from Mr Ashley Bond, a road engineer, who swore an affidavit on 14 April 2018 expressing his opinion that it would cost approximately $450,000 to construct a sealed road along the alleged alternative access. Ms Crotti responded by serving a report by a surveyor, Mr Learmont, dated 23 May 2018 asserting that the alternative access provided a road corridor to the Turvey Property. Mr Learmont had not inspected the alternative route. In an affidavit of 30 June 2018, filed on behalf of Ms Turvey a surveyor, Mr Thomas, asserted that, to his personal knowledge the owners of the land over which the alternative access passed, had been in exclusive possession of that land for over 12 years. The two surveyors prepared a joint report, in which Mr Thomas said that he had inspected the site and observed a rough, poorly maintained and in places faint to non-existent farm track that connected pockets of cleared land that was suitable only for use by a tractor or four wheel drive vehicle in dry weather only, and Mr Learmont said that he could not express any opinion because he had not had the opportunity to inspect the site.
whether the gates erected by Ms Crotti prevented vehicular access;
whether the gates erected by Ms Crotti resulted in cancellation of the auction of the Turvey Property;
the quantum of the loss suffered by Ms Turvey by virtue of the cancellation of the auction;
responsibility for the maintenance of the Access Road; and
whether there was an alternative access to the Turvey Property.
The letter said that it was clear that both parties had, by then, been granted a right-of-way over the Access Road and that those rights had been recorded on the respective folios of the register. The letter suggested that it was unnecessary for the parties to incur further costs in having expert title searchers attend a conclave.
Owen Hodge also wrote to Dentons on 3 August 2018 raising several matters and confirming, without admission, the undertaking given by Ms Crotti on 25 November 2016 that she would not re-erect any of the gates prior to judgment in the proceedings or the dismissal of the proceedings. The letter said that Owen Hodge were not aware of any other undertaking.
Dentons responded on 5 September 2018 saying that, in the light of the expert evidence that the Access Road is a private subdivisional road over which both parties have a registered right-of-way, Ms Crotti confirmed that she would not re-erect any gates over the Access Road at any time in the future. A signed undertaking to that effect was enclosed with the letter. In addition, Dentons disputed that Ms Crotti had sought to exculpate herself for her conduct in erecting the gates and asserted that Ms Crotti's evidence established that she had a well-founded basis for believing that she owned the Access Road at the time she erected the gates.
Counsel for Ms Turvey characterised the undertaking given by Ms Crotti as a "curiosity", in so far as it provides as a reason for giving it that the joint experts had established that both parties had easements over the Access Road. Thus, that was known to Ms Crotti at least a year beforehand, when the searcher retained on her behalf reported to that effect on 23 June 2017. In those circumstances, Ms Turvey contends, Ms Crotti unduly prolonged the litigation, which "constitutes misconduct in the litigation".
On 12 October 2018, Dentons wrote to Owen Hodge, referring to the prayer in Ms Turvey's amended summons for a declaration that she had an easement over part of Curramore Road hatched in the sketch attached. Dentons asserted that the sketch was an inaccurate and inappropriate depiction of the Access Road and the neighbouring property. Accordingly, Dentons said, Ms Crotti would not consent to a declaration in those terms. Dentons ended by asserting that Owen Hodge's letter was "a further example of your client's unreasonable and intimidating conduct towards our client."
Between 13 December 2016 and 20 November 2018, some 24 affidavits were filed and served on behalf of Ms Turvey. All but two of those had been served by 21 April 2018.
Ms Crotti served a report by Mr Keen who proffered an opinion on the marketing of the Turvey Property. Ms Turvey asserts that there were various grounds for objecting to that report and she did not file anything in reply. Nevertheless, she asserts, it was necessary to prepare cross-examination in the event that the report was admitted. She claims that the costs of that report should be awarded against Ms Crotti in any event.
On about 13 November 2018, the Court was informed that the proceedings had been settled, except as to the question of costs. The hearing fixed for 4 December 2018 would be limited to the question of costs. At a directions hearing before me on 13 November 2018, counsel for Ms Turvey indicated that it had been suggested to Ms Crotti's legal representatives that the parties should co-operate to produce an agreed bundle for the purposes of the hearing and that submissions be prepared. Counsel for Ms Crotti indicated that a statement of issues had been prepared by counsel for Ms Turvey and inquired whether it would be of assistance simply to provide competing submissions. I indicated that it would be useful to have written submissions from each party. At a further hearing on 21 November 2018, counsel for Ms Turvey indicated that the bundle of documents had been prepared on the basis of an argument as to costs.
[5]
Reasoning
It is necessary to resolve the question as to costs against the background outlined above and the findings made in the Principal Reasons. Thus I said in the Principal Reasons that it is difficult to understand why, when Ms Crotti spoke to Ms Langton on 13 February 2015, she said that she had been told by a solicitor that the Access Road belonged to her. There was no evidence that her solicitor told her such a thing. Rather, the evidence indicated quite the contrary. Ms Crotti did not seek to justify her handed conduct in erecting the gates without consulting any other person, such as Ms Turvey, who may have had an interest in using the Access Road but chose not to give evidence. In those circumstances, I awarded general damages to reflect the high handed manner in which the gates were erected.
In ordinary circumstances, costs follow the event on a party and party basis. Where one party effectively surrenders to the other by giving undertakings or submitting to orders in the terms or to the effect claimed by the other party, the usual order as to costs will ordinarily be made in the absence of disentitling conduct on the part of the moving party [2] .
While it appeared at one stage that the proceedings had been settled, except as to the question of costs, the party did not reach final agreement. Accordingly, it was necessary for a final hearing. Even then, at the very heel of the hunt, so to speak, Ms Crotti accepted that her conduct had constituted a nuisance and the only question left for the Court, apart from the question of costs, was an assessment of the loss or damage suffered by Ms Turvey by reason of the nuisance. In the event, the quantum of damages that I awarded would not ordinarily be sufficient to justify an order for substantive costs. Nevertheless, it was not until the first day of the hearing that Ms Crotti, through her counsel, finally acknowledged that her conduct constituted an actionable nuisance for which she offered no justification, notwithstanding her earlier assertions that she had some entitlement to erect the gates. In the circumstances, I do not consider that a basis has been established for depriving Ms Turvey of her costs of the proceedings. The question that remains is the basis upon which costs should be assessed.
No evidence as to the quantum of costs has been adduced. However, in the course of directions hearings, an intimation was given on behalf of Ms Turvey that her costs extended to hundreds of thousands of dollars. As I have said, Ms Turvey seeks an order that the costs be assessed on the indemnity basis. On the other hand, Ms Crotti seeks an order limiting the quantum of the costs by reference to principles of proportionality.
The exercise of the discretion to order indemnity costs requires some sufficient or unusual feature or a delinquency bearing a relevant relation to the conduct of the proceedings [3] . While costs are not ordered in order to punish an unsuccessful party, costs on a solicitor and client basis may be ordered in order to compensate the successful party more fully or adequately by reason of delinquency of the unsuccessful party [4] .
An order for costs is not normally intended to indemnify the successful party against all of the costs incurred in the conduct of proceedings. However, such an order may be made by reason of particular misconduct that causes loss of time to the Court and to the other parties, where the proceedings are commenced or continued for an ulterior motive, where proceedings are defended in wilful disregard of known facts or established law [5] .
Ms Turvey contends that Ms Crotti continued to resist orders sought by Ms Turvey in circumstances where she had no ground for disputing the existence of a right of way over the Access Road appurtenant to the Turvey Property. However, it is relevant that, at a very early stage in the proceedings, Ms Crotti removed the nuisance and at various times offered to compensate Ms Turvey for the loss incurred by reason of the auction expenses thrown away upon cancellation of the proposed auction. Certainly, there was some doubt about the extent or import of the undertaking proffered by Ms Crotti. That is to say, it is not clear that she was ever proffering a permanent undertaking not to re-erect the gates. It was not until several months before the date fixed for hearing that an undertaking on a final basis was proffered on 5 September 2018. While the justification for proffering the undertaking at that time may be doubtful, it is clear that from that time there was no nuisance and there was a permanent undertaking not to reinstate the nuisance.
The final relief relied upon by Ms Turvey developed from her summons of 21 October 2016, her amended summons of 1 December 2016 and her Statement of Claim of 22 December 2016. In the summons as first filed, Ms Turvey claimed relief as follows:
1. a declaration that she has an easement over that part of Curramore Road hatched on the sketch annexed to the summons for a free and clear right of way to and from the Turvey Land, to pass and re-pass on foot by vehicle or otherwise;
2. a declaration that the erection by Ms Crotti of the gates numbered 1 and 2 are shown on the sketch is and continues to constitute a nuisance;
3. a declaration that the erection by Ms Crotti of the gate numbered 3 as shown on the sketch is and continues to constitute a trespass or alternatively a nuisance;
4. an order requiring Ms Crotti to remove gates 1, 2 and 3 and restore the bushman's style gate; and
5. damages for and related to the loss of the sale of the Turvey Land and for aggravation and loss of amenity.
The amended summons, in addition to stylistic changes to prayer (4), sought a permanent injunction prohibiting Ms Crotti from interfering with Ms Turvey and her invitees gaining vehicular access on to and egress from the Turvey Land.
In her statement of claim, Ms Turvey abandoned her claim for a declaration as to the existence of an easement. She also amended the prayer for a permanent injunction to one that enjoined Ms Crotti from re-erecting gates 1, 2 or 3 or any like gates or any posts for the purposes of supporting such gates as well as the injunction restraining interference with access. The prayer for damages was expanded in the statement of claim to include:
1. Damages for and related to the loss of the sale of the Turvey Land, including marketing costs and loss of bargain;
2. the costs of and incidental to the application for registration of easements appurtenant to the Turvey Land including the fees for surveyor and title researchers;
3. damages for loss of amenity, distress, annoyance and inconvenience; and
4. damages for trespass by Ms Crotti onto the Turvey Land.
The statement of claim also claimed additional relief including an order that the easement that the Registrar-General had recorded as being appurtenant to the Turvey Land be recorded as burdening "the hatched portion of Curramore Road". That was not a matter in which Ms Crotti had an interest.
The sketch attached to the summons and the statement of claim is set out in the Appendix to these reasons. Although the pleadings refer to "the hatched portion of Curramore Road", it is apparent that the land that is hatched on the sketch is not in fact part of Curramore Road. The evidence indicated that the fee simple in relation to the hatched land, which was part of the land shown in the Curramore Estate Plan, remained vested in the legal personal representatives of Thomas Taylor, who is now shown in folio identifier 1/1248239 as the registered proprietor. The land shown as hatched on the sketch does not appear to have been dedicated as a public road and is certainly not part of Curramore Road.
The statement of claim, after reciting the title history of the Turvey land, commencing with the Curramore Estate Plan, relevantly made the following allegations:
15 Ms Crotti:
1. erected or caused to be erected the three gates;
2. removed Ms Turvey's bushman style gate on the boundary of the Turvey Land;
3. padlocked one or more of the gates;
4. thereby denied access to the Turvey Land to Ms Turvey.
16(b) Ms Crotti asserted to Ms Deborah Langton in February 2018 that the hatched portion was "her property" and on that basis she was denying access to the Turvey Land via "her property".
17 Ms Langton wrote the letter of 4 December 2015 to Ms Crotti.
19 Owen Hodge wrote the letter of 8 January 2016 to Ms Crotti.
20 Ms Crotti failed or refused to remove the gate or provide the undertaking sought by Owen Hodge in the letter of 8 January 2016.
21 In light of the failure or refusal by Ms Crotti, Ms Turvey applied for an easement to be registered as appurtenant to the Turvey Land and incurred considerable costs in that regard.
22 In 2016 the "aforesaid free and clear rights-of-way" were registered as appurtenant to the Turvey Land.
24 Subsequent to the summons being served, Ms Crotti:
(a) removed the gates and taken down the posts;
(b) replaced gate 3 with the gate less secure than the bushman's style of gate that she took down;
(c) proffered no undertaking on a final basis that she will not, in the future, re-erect the gates and their associated posts.
25 By reason of the conduct described above, Ms Turvey has suffered loss and damage as follows:
1. the loss of marketing costs of $5929;
2. costs of and incidental to the application for the registration of the easement as appurtenant to the Turvey Land;
3. loss of the sale of the Turvey Land; and
4. anxiety and distress.
In the events that occurred, the claim for loss of bargain in relation to the Turvey Land was not pursued and Ms Turvey failed to prove substantial parts of her claim for anxiety and distress. However, as the Principal Reasons disclose, I proposed damages that would include 50% of the costs of obtaining the easement.
Ms Crotti's defence did not admit many of the allegations made in the statement of claim. Specifically, and relevantly for present purposes, paragraph 10 of the statement of claim alleged as follows:
"At the time of the said conveyance of the [Turvey Land] to [Ms Turvey and her late husband], the easement in [the 1853 Conveyance] had not been registered as appurtenant to [Turvey Land] nor as burdening the [Access Road]."
In her defence, Ms Crotti did not admit the allegation in paragraph 10 of the statement of claim and alleged the following:
"(a) there is no easement registered as belonging to the Turvey [Land]; and
(b) there is no easement registered as burdening the [Assess Road]; and
(c) there is no express reference to an easement in the [1853 Conveyance]."
I have referred above to the exchange of correspondence concerning that part of Ms Crotti's defence. While somewhat overly technical, the assertions in the defence were correct at the time of the defence, namely 29 March 2017. Ultimately of course, editions of folio identifiers have been issued by the Registrar-General recording the rights granted by the 1853 Conveyance as being appurtenant to the Turvey Land and affecting the Access Road.
To the extent that Ms Turvey's title to the Turvey Land has thereby been clarified and confirmed, the dispute has given rise to some benefit for her. In any event, the costs incurred in connection with title searches and clarifying and confirming title to the rights constituting an easement for right of way are not costs of the proceedings. That is demonstrated by the fact that they were part of the damages claimed and which I propose to award to Ms Turvey.
It is quite unfortunate that a dispute of the nature of the dispute in these proceedings has taken more than three years to resolve at considerable cost to both Ms Turvey and Ms Crotti. For the most part, the costs could have been avoided by civil communication between the parties, something that appears to have been eschewed by them.
While the stance adopted by Ms Crotti, presumably with legal advice, might be fairly characterised as a technical one, I do not consider that, in the light of the language of the pleading, that the case is an appropriate one for an order of indemnity or solicitor and client costs. On the other hand Ms Turvey is entitled to her costs of the proceedings. Nevertheless, it may be, and I express no view about the matter at this stage, that unnecessary or excessive costs have been incurred, as suggested on behalf of Ms Crotti. That is a question that cannot properly be answered prior to the preparation of a detailed bill of costs. Ms Crotti asks that a capping order be made limiting the quantum of the costs that may be recovered. I do not consider, on the present state of the evidence before me, that it is possible to fix such a cap.
[6]
Conclusion
I propose to order that Ms Crotti pay Ms Turvey's costs of the proceedings. However, I will reserve liberty to Ms Crotti to apply in the event that, after a bill of costs has been prepared, she wishes to pursue a contention that the costs claimed are excessive or were incurred unreasonably. Ultimately, that may be a matter for a taxing officer. The liberty should be invoked only if there is an issue of principle in the taxing of any bill of costs produced on behalf of Ms Turvey.
I propose to direct Ms Turvey to bring in short minutes of orders to reflect the conclusions that I have reached in the Principal Reasons and in these reasons. The costs to be ordered against Ms Crotti will not include the costs of the argument as to costs, which should be should be borne by the respective parties.
[7]
Endnotes
See [2018] NSWSC 1959.
See re Wilcox Ex parte Venture Industries Pty Ltd (No 2) (1996) 72 FCR 151 at 151-52; and Kiama City Council v Grant [2006] NSWLEC 96 at [80].
See Colgate Palmolive Co v Cussons Pty Ltd 46 FCR 225 at 233-234, Oshlack v Richmond River Council (1998) 193 CLR 72; and Capital Investment v Macquarie Equity Capital Markets (No 7) [2008] NSWSC 199 at [24].
See Oshlack v Richmond River Council (1998) 193 CLR 72 at [44].
See Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Ltd (1988) 81 ALR 397 at 401.
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Decision last updated: 16 April 2019
On 17 July 2018, Dentons wrote to Owen Hodge saying that Ms Crotti had been granted a right-of-way over the Access Road and that the right-of-way had been recorded on the folio relating to Lot 104. A copy of edition No 4 of the relevant folio was enclosed with the letter.
On 3 August 2018, Dentons wrote to Owen Hodge saying that the facts and issues that were actually in dispute were very narrow and could be summarised as follows:
On 23 November 2018, Owen Hodge sent to Dentons proposed consent orders. On 23 November 2018, Dentons sent to Owen Hodge alternative draft consent orders. Owen Hodge responded later on 23 November 2018 indicating that certain aspects of the proposed orders were unacceptable and "contrary to the spirit of what is being done".
On 27 November 2018, Dentons wrote to Owen Hodge referring to various proposals concerning the settlement of the proceedings except as to costs. Dentons indicated that it had been proposed on behalf of Ms Turvey that the proceedings be discontinued. The letter said that Ms Crotti had agreed to the discontinuance on the basis that she was entitled to an order for costs. The letter said that that was rejected by Ms Turvey on the basis that it was unacceptable and contrary to the spirit of what is being done. The letter suggested that an agreement be reached to refine the hearing on the issue of costs and that the parties deal with the nuances of discontinuance by way of submissions. The letter said that that had also been rejected on behalf of Ms Turvey. The letter invited Ms Turvey to reconsider her position and to agree to conduct the hearing on the issue of costs and that the question of discontinuance be dealt with by way of submissions.
On 26 November 2018, the Court was informed that the parties were unable to reach consensus concerning proceeding on the basis only of costs and requested that the matter be heard as originally planned over a period of three days. On 29 November 2018, Owen Hodge wrote to Dentons indicating the deponents of affidavits who were required for cross-examination. On 30 November 2018, Dentons wrote to Owen Hodge indicating the deponents on behalf of Ms Turvey who would be required for cross-examination.
Ms Turvey complains that the submissions of 30 November 2018 filed on behalf of Ms Crotti advanced "the wholly unmeritorious proposition" that the gates were not a substantial interference because Ms Crotti had left her telephone number on the sign on the gates saying "trespasses will be prosecuted". However, the submission abandoned what counsel for Ms Turvey characterised as "the outrageous proposition" about alternative access. Nevertheless, Ms Turvey complains, Ms Crotti advanced "the hopeless proposition of access" up to the joint report of 31 October 2018 and 1 November 2018. Ms Turvey asserts that that is consistent with her conduct throughout "acting resolutely in defence of her original deceit" to Ms Langton. Ms Turvey asserts that once Ms Crotti's counsel had the chance to reflect he abandoned her "last hollow attempt at justification of her conduct" and announced that the trial was only about damages. That, Ms Turvey complains, signalled the "final unrepentant acceptance" by Ms Crotti of the legal position put in Ms Langton's letter of December 2014.
On the first day of the hearing, counsel for Ms Crotti conceded that the act of erecting the gates constituted a nuisance. He also announced that he would not call Ms Crotti. Ms Turvey complains that the day's preparation and working out cross-examination was thus wasted and that the costs of doing so should be awarded on an indemnity basis. Further, Ms Turvey was not required to read affidavits that had been prepared in response to Ms Crotti's evidence.