Dudley v Ainsworth (No 2)

Judgment in this matter was given on 17 November 2021 (see Dudley v Ainsworth [2021] NSWSC 1478). The Court found that certain fencing and landscaping works undertaken by the defendants amounted to a substantial interference with the plaintiff’s enjoyment of a right of carriageway over the defendants’ land. The defendants’ Cross-Summons, which sought a modification of the easement, was dismissed. Orders giving effect to the judgment were made on 15 December 2021 requiring the defendants to remove parts of the fence and landscaping works.

There is an outstanding question of costs. The Court expressed the view in the earlier judgment at [50] that there seemed to be no reason why costs should not follow the event. The plaintiff embraces that view, and seeks an order that the defendants pay his costs of the proceedings. The defendants submit that for various reasons there should be no order as to costs, to the intent that all parties should bear their own costs.

The reasons advanced by the defendants may be summarised as:

In response, the plaintiff submitted that he has effectively enjoyed complete success in the proceedings even though he succeeded in a fashion that was “slightly different” to how the claim was framed. The plaintiff submitted that the need to commence proceedings arose from the defendants’ decision to build the fence and dictate to the plaintiff how he could enter and exit his property. It was submitted that none of the matters put forward by the defendants would cause the Court to depart from the position that costs should follow the event.

I do not accept that the plaintiff succeeded on a case not run. The essence of the case was that the construction of the fence and associated works amounted to a substantial interference with the plaintiff’s rights under the easement. That case was made out. It is true that the relief claimed in the Summons, and pressed throughout, included an order that the fence and associated works be removed in their entirety, and such relief was not given. However, it was always open to the Court to grant relief of that kind but in a fashion more limited than what was sought. This prospect was raised by counsel for the plaintiff in closing submissions (at Transcript 78) and, contrary to the suggestion made in the defendants’ submissions on costs, the matter was later addressed by counsel for the defendants (at Transcript 85-6).

The pursuit of the more extensive relief may have led the defendants to think that they had reasonable prospects of defeating the claim. However, it is difficult to see how that effectively caused the litigation or added to the costs of the litigation. There is no evidence that the defendants were at any stage prepared to remove parts of the fence so as to allow greater access.

I do not accept that the relief that was granted was consistent with the Cross-Summons but not the Summons. The relief sought on the Cross-Summons was an order for modification of the easement on the grounds that the modification would not substantially injure the persons entitled to the easement. As stated in the earlier judgment at [49], the terms of the proposed modification would have permitted the existing fence which had a gap of only about 7.4m in width. I found that the existing fence caused the plaintiff an injury that was real and had present substance, so the basis for the proposed modification was not established. The Cross-Summons was dismissed accordingly. The relief actually given was granted pursuant to the Summons, based on the Court’s findings that there was a substantial interference with the easement. The orders were in the nature of further or other orders as the nature of the case required (see Uniform Civil Procedure Rules 2005 (NSW) “UCPR” r 36.1).

In my opinion, considering the overall circumstances of the case, the proper exercise of the Court’s discretion as to costs is to order that the defendants pay the plaintiff’s costs of the proceedings. The plaintiff is the successful party, having won the “event”, even if the relief ultimately given was less extensive than that claimed. I do not see a good reason to depart from the usual position that is set forth in UCPR r 42.1. I therefore order that the defendants pay the plaintiff’s costs of the proceedings.