Southern Tablelands Four Wheel Drive Club Incorporated v Bredbo Pty Ltd

HIS HONOUR: By its amended summons filed on 30 October 2024, the plaintiff seeks orders pursuant to s 88K of the Conveyancing Act 1919 for the creation of an easement in the nature of a right of carriageway over the defendants’ land in southern New South Wales. It is unnecessary to descend into the details of the plaintiff’s claim for that relief for present purposes. It is sufficient to observe that the principal issue between or among the parties relates to the assessment and determination of the compensation payable by the plaintiff to the defendants for the easement that it seeks.

On 13 February 2026, the second and third defendants issued a notice to produce to the plaintiff in the following relevant terms:

Three days later, on 16 February 2026, Mitchell Evelyn, the solicitor for the plaintiff, wrote to the solicitor for the second and third defendants in the following terms:

On 23 February 2026, the plaintiff filed a notice of motion seeking an order that the notice to produce be set aside. That application was supported by the affidavit of Mitchell John Evelyn affirmed on 18 February 2026.

The second and third defendants did not withdraw the notice to produce prior to 5pm on 23 February 2026 as requested. They did so instead on 23 March 2026. In such circumstances, the plaintiff now seeks an order for the costs occasioned or thrown away by reason of the service of the notice to produce, including the costs of the present contested application for those costs, in accordance with Mr Evelyn’s foreshadowed proposal in his 16 February 2026 letter.

The application for costs is opposed by the second and third defendants.

It is a little difficult to understand the bases upon which that opposition rests. The defendants made offers to settle the plaintiff’s claim for the costs of the notice produce, ranging from a suggestion that costs should be reserved to an offer of payment of a compromise amount for those costs. These offers were not accepted. I am certainly not attracted to the suggestion that it was unreasonable for the plaintiff to reject an offer that the costs of the notice to produce should be reserved, or that the plaintiff should accept less than the full amount of costs incurred by it, when it was equally unreasonable for the defendants not simply to have acceded to Mr Evelyn’s request.

A faint attempt was made by the second and third defendants to justify the issue of the notice to produce upon the basis that the documents that were sought had some legitimate forensic purpose. Having regard to the nature of the principal issues in the proceedings, it is a little difficult to understand how that contention could stand. However, in my view it is completely beside the point.

The misconceived issue and later uncontested abandonment by the second and third defendants of their notice to produce necessarily bespeaks the fate of the present application. It was in plain terms a waste of time and resources and no amount of retrospective attempts by those who issued the ill-fated notice to explain or legitimise its creation can alter that fact.

From as early as 16 February 2026, the plaintiff’s solicitor explained in the clearest of terms that the notice to produce was challenged and that it should be withdrawn on pain of a costs order on an indemnity basis if it were not. The extraordinary amount of correspondence generated thereafter, with the second and third defendants effectively arguing the toss until eventually and inevitably recognising the complete lack of merit in their position, is difficult to justify. No amount of finely constructed arguments to suggest that the notice to produce might arguably have been issued on a sound basis can overcome the simple fact that it was ultimately withdrawn and, without wishing to labour the point, should never have been issued.

It follows that the second and third defendants should pay the plaintiff’s costs of the notice to produce, including the costs of this application for costs, on the ordinary basis up to 5pm on 23 February 2026 and on an indemnity basis thereafter.