Crosby v Hanley [2021] NSWSC 507

“I sued and got what I wanted, so pay my legal costs!”

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The Ps enjoyed an easement over the Ds’ land. 

The parties were neighbouring farmers. The easement related to irrigation water and included rights to access the land to maintain pumping apparatus.

The Ds installed locks and fences that interfered with the Ps’ access.

The Ps commenced proceedings.

After that the Ds took steps to resolve the Ps’ complaints by removing padlocks, moving fences, and installing culverts. The Ps accepted all the impediments were then gone: [7]

The Ps were granted leave to discontinue the proceedings having achieved what they set out to: [9]

So what about legal costs?

Normally the discontinuing party (i.e. the Ps in this case) would pay: [11]

The Ps said the Ds acted unreasonably in defending and should pay: [12]

There was some possibility for legal argument (about the precise scope of the easement) and factual argument (about the precise impediments themselves) if the matter went to hearing: [17]

The Court found the Ps were justified in commencing and noted the Ds’ changes obviated the need for them to continue. The Ps would have almost certainly succeeded. The Ds could have acted more quickly: [20]

Noting this, the Court ordered the Ds to pay half of the Ps’ costs: [21]