Background
The dispute concerned access to properties near Mullumbimby. The registered easement did not precisely follow the track that landowners actually used, and floods in 2022 washed away a bridge across Maori Creek, after which a causeway was built slightly farther south. Sarah Louise Doherty commenced proceedings in 2023 after John Kotroni, the owner of land crossed by the track, changed a gate code and denied her access outside the registered easement.
Doherty initially advanced claims based on misdescription, rectification and estoppel, with a claim under s 88K of the Conveyancing Act 1919 (NSW) pleaded in the alternative. She abandoned all but the s 88K claim in February 2025, when two other landowners became plaintiffs. In June 2026, Pike J made consent orders creating an easement along a plan prepared by Kotroni’s surveyor, requiring a bridge at the former bridge location and awarding Kotroni $26,000 compensation. Costs were reserved.
The plaintiffs sought a departure from s 88K(5), which ordinarily makes the applicant responsible for the costs of proceedings to impose an easement. They argued principally that Kotroni had acted unreasonably by withholding his position about the preferred creek crossing, using inadequate bare denials in his defence and prolonging the litigation.
The Court’s Holding
Scruby J declined to make an order “to the contrary” under s 88K(5) and ordered the plaintiffs to pay Kotroni’s costs of the proceedings. The Court also ordered them, subject to a seven-day opportunity to seek variation, to pay Kotroni’s and the seventh defendant’s costs of the costs application.
The Court found that Kotroni had not acted unreasonably by insisting on a registrable survey, precise easement terms and engineering evidence before committing to a proposed alignment. Those matters were fundamental to the plaintiffs’ statutory case, yet they did not provide a registrable plan or specified terms until July 2025 and never obtained an engineering assessment of their proposed bridge location.
Although Kotroni’s bare pleading denials did not properly identify the real issues, his position had repeatedly been explained in correspondence, and a better pleading would not materially have changed the litigation. The eventual consent orders adopted the plan, valuation and substantially the terms advanced by Kotroni, reinforcing the conclusion that his conduct did not justify departing from the statutory costs position.
Key Takeaways
- An applicant seeking an easement under s 88K ordinarily must pay the proceeding’s costs unless the Court finds sufficient reason to order otherwise.
- A landowner does not act unreasonably merely by refusing consent or requiring a registrable plan, precise terms and relevant technical evidence before taking a final position.
- Pleading deficiencies will not necessarily alter costs where correspondence disclosed the true position and the deficiencies did not materially affect the litigation.
- When proceedings settle, the Court may consider whether the consent orders substantially adopted one party’s survey, valuation and proposed terms when assessing alleged unreasonable conduct.
Why It Matters
The decision underscores the demanding burden on s 88K applicants who seek to shift or avoid the statutory costs consequence. Because such orders impose an interest on another person’s land, an owner may require the applicant to establish the statutory conditions and properly define the proposed easement without thereby acting unreasonably.
Practitioners should obtain a registrable survey, draft terms, valuation evidence and any necessary engineering assessment early. Delay in supplying those materials can undermine both settlement efforts and a later argument that the burdened owner should be deprived of costs.