Griffiths v Bradshaw (No 2)
[2015] QSC 194
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- Griffiths v Bradshaw (No 2)[2015] QSC 194
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Griffiths v Bradshaw (No 2)[2015] QSC 194
Griffiths v Bradshaw (No 2)[2015] QSC 194
SUPREME COURT OF QUEENSLAND
CITATION: | Griffiths v Bradshaw (No 2) [2015] QSC 194 |
PARTIES: | PETER GRIFFITHS (applicant) v JAN LAUREL BRADSHAW (respondent) |
FILE NO/S: | SC No 12194 of 2013 |
DIVISION: | Trial Division |
PROCEEDING: | Hearing |
ORIGINATING COURT: | Supreme Court at Brisbane |
DELIVERED ON: | 25 June 2015 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 25 June 2015 |
JUDGE: | Philip McMurdo J |
ORDER: | Delivered ex-tempore on 25 June 2015: Order as per draft as amended. |
CATCHWORDS: | PROCEDURE – COSTS – DEPARTING FROM THE GENERAL RULE – COSTS FOLLOW THE EVENT – whether special circumstances exist for award of costs against servient owner under s 180(6) of the Property Law Act 1974 Property Law Act 1974 (Qld), s 180(6) |
COUNSEL: | C Jennings for the applicant M O Jones for the respondent |
SOLICITORS: | Russells Law for the applicant Murdoch Lawyers for the respondent |
The applicant seeks the costs of his proceeding from the respondent. Section 180(6) of the Property Law Act 1974 (Qld) provides that in a case under this section, the court shall not, except in special circumstances, make an order for costs against the servient owner. The applicant submits that there are special circumstances.
The respondent submits that there are no special circumstances warranting an order for costs against her. Further, she submits that the applicant should pay her costs.
The factors which are relevant to each of these submissions are as follows:
(a) The respondent’s case, although unsuccessful, was arguable, the case ultimately turning upon questions of degree.
(b) The respondent acted honestly.
(c) The respondent offered to pay more than $100 000 towards the construction of a new road, in order to avoid this litigation.
(d) The respondent did not resist the proceeding in order to secure some financial gain.
(e) The case was appropriately conducted by each side at the trial.
(f) The respondent permitted the continued use of these roads during the progress of the proceeding.
(g) The respondent was motivated to refuse access for reasons which were unrelated to the use of the roads.
Of those factors, all but the last are in the respondent’s favour. As to the last factor, the respondent was motivated by her grievance about the controversy relating to the bore. That may or may not have been a justifiable grievance and the court should not explore it in the present context.
With these matters considered, special circumstances are not established for the imposition of an order for costs against the respondent. However, the applicant has been successful and having conducted its case appropriately, should not have to pay costs. In my conclusion, there should be no order for the costs of the proceeding and there’ll be an order as per that amended draft.