Procedure - Costs - Power to award - Statutory basis to award costs pursuant to s 144(3) of the Land Titles Act 1980 (Tas) - General discretion to award costs.

Land Titles Act 1980 (Tas) s 144(3)

Williamson, Williamson v Recorder of Titles [2025] TASSC 9

Judgment Number: [2025] TASSC 14

RECORDER OF TITLES and SANDRA TAGLIERI as Trustee of the

1. On 3 March 2025, the Court dismissed the applicants' application for orders under the Land Titles Act 1980 ("the Act") with respect to the decision of the first respondent to reinstate six easement statements on the title of property owned by the applicants. The Court reserved its judgment on the question of costs. This judgment now deals with that issue.
2. The second respondent actively opposed the relief sought by the applicants in the substantive proceeding; see Williamson, Williamson v Recorder of Titles [2025] TASSC 9. She succeeded on all points raised by her counsel in opposition to the relief sought by the applicants. As a successful litigant, she would ordinarily be entitled to an order that the applicants pay her costs of the application (including any reserved costs) to be taxed, or agreed, unless there was good reason not to do so.
3. Although the first respondent resisted the relief sought by the applicants, his interests in so doing were different from the interests of the second respondent. The first respondent was concerned to show that his decision to restore the easements was justified. The second respondent's interests were different from the interests of the first respondent. The first respondent was concerned with the proper carrying out of his public duty. The second respondent was concerned with her ability to exercise her private rights. Her addition as a respondent to the proceeding was not ultimately opposed by the applicants. The applicants' final position was that they did not oppose her being made a party on the basis that she pay her own costs. She did not agree to that condition. Her addition, as a respondent, was not accompanied by any order of the Court, limiting her status as a party to one being a party who was not able to seek costs.
4. Section 144(3) of the Act provides that:

"All expenses attended upon any proceedings under this section shall be borne and paid for by the person referred to in subsection (2), unless the Supreme Court certifies that there were no probable grounds for the refusal, direction, or order referred to in subsection (1)."

1. The substantive application was made under s 144(2) of the Act. The Court has not certified that there were no probable grounds for the direction of the first respondent and will not do so. On the contrary, it has found that the direction of the first respondent was justified.
2. Consequently, all expenses incurred by the second respondent are to be born by the applicants. That legislative command is paramount when considering the ordering of costs in this matter.
3. The ordinary meaning of "expenses incurred" upon the current proceeding, encompasses all legal costs borne in or in connection with the proceeding. According to the Oxford Dictionary (2nd edition), "expense" relevantly means, "money expended or sum expended", or "the pecuniary charge, costs or sacrifice in any course of action." In ordinary language, an expense, in the context of a legal proceeding, includes costs involved in running or defending that proceeding. Therefore, the second respondent is entitled to costs from the applicants, by virtue of s 144(3) of the Act.
4. In the alternative, nothing in s 144(3) of the Act prevents a successful party, in the position of the second respondent, from obtaining her costs of the proceeding. The second respondent's submissions were of considerable assistance to the Court, as was indicated in the reasons for judgment and were made economically by her counsel. The second respondent's counsel took the lead in opposing the applicants' claim. The submissions of the first respondent were in the main ancillary to those of the second respondent.
5. It must also be borne in mind on the question of the entitlement of the second respondent to costs, that she and other plaintiffs (the Taylors) had raised, in a separate proceeding, for adjudication their entitlement to the deleted easements, the subject of this proceeding. That proceeding was due to be heard in mid-February 2025. However, those dates were vacated to enable the current matter to be heard and determined first, on the basis that a judgment in this matter would have significant repercussions for the parties in the earlier matter.. If the issue of the validity of the reinstatement of the relevant easements had have been heard and determined in the matter in which the Taylors were also plaintiffs, the current second respondent would, in all likelihood, have been entitled to costs in that matter as it was the most significant matter to be determined in that litigation. The validity of the restoration of the easements by the first respondent in this matter has resolved a point in favour of the second respondent which she would have pursued in any event as the second plaintiff in the earlier filed matter. Had that matter been heard and determined before this matter, she would, in all likelihood, have been entitled to costs, as it was central to its outcome.
6. The order of the Court is:

(1) The applicants pay the second respondent's costs of the application, including any reserved costs, to be taxed in default of agreement.