Doherty v Kotroni [2026] – Costs of Easement Applications under s 88K – Land Law – Mr Anthony Strik
In Doherty v Kotroni [2026] NSWSC 1207, Scruby J of the Equity Division of the NSW Supreme Court (Real Property List) decided who should pay the costs of an easement claim under s 88K of the Conveyancing Act 1919 (NSW) (‘the Act’). The claim had settled by consent. The costs application was heard on 17 September 2026 and judgment was delivered on 1 October 2026.
Background
The parties own neighbouring lots near Mullumbimby, divided by Maori Creek. A registered easement gave access from Coopers Lane, but the track the owners actually used (the ‘Access Track’) did not follow it exactly. Part of the Access Track ran through a coded gate on land owned by the first defendant, Mr Kotroni. The creek had been crossed by a bridge until it was washed away in the 2022 floods. A causeway was then built about 10 metres to the south.
Mr Kotroni bought the burdened lot in October 2022. In February 2023 he changed the gate code and did not give it to the first plaintiff, Ms Doherty. She commenced proceedings and obtained interlocutory relief by consent. Her primary case was that the registered easement was misdescribed and should be rectified, supported by an estoppel claim. Her claim under s 88K was pleaded only in the alternative.
Over the next two years Mr Kotroni’s solicitors asked repeatedly for a survey in registrable form, the proposed terms of the easement and engineering evidence. The requests were made on 27 October 2023, 19 March 2024, 5 December 2024 and 14 March 2025. The Court also ordered survey evidence to be served by 15 November 2024, and it was not served.
In February 2025 Ms Doherty abandoned everything but the s 88K claim. The Spiropouloses, previously defendants, joined her as plaintiffs. The plaintiffs did not serve a survey until July 2025. It placed the crossing at the causeway with a bridge, but they had no engineering evidence that a bridge there was viable. By then Mr Kotroni had an engineer’s report favouring the old bridge site. He then obtained a survey for that alignment and a valuation of $26,000 in compensation. The valuer assessed the plaintiffs’ causeway alignment at $41,000.
On 3 June 2026 Pike J made consent orders granting an easement on the alignment in Mr Kotroni’s survey, with the compensation and terms Mr Kotroni had proposed. Costs were reserved.
Legal Issues
Section 88K(5) of the Act makes the costs of a s 88K application payable by the applicant, “subject to any order of the Court to the contrary”. The plaintiffs sought such an order. They asked that Mr Kotroni pay their costs up to and including the interlocutory application, and that there be no order as to costs for the rest of the proceedings. In the alternative, they asked that the costs be shared with the submitting defendants, or that they pay only for Mr Kotroni’s experts.
Their central argument was that Mr Kotroni had acted unreasonably. They said he had concealed that his only real objection was the location of the crossing, and that they would have agreed to the old bridge site had he said so early.
Legal Reasoning
The Principles
Scruby J emphasised that a s 88K order is confiscatory in nature. Under Shi v ABI-K Pty Ltd (2014) 87 NSWLR 568, a landowner may refuse consent and require the applicant to prove its case. In Studholme v Rawson (2020) 102 NSWLR 490, the Court of Appeal set out a range of departures from the statutory rule, each requiring a greater degree of unreasonableness by the owner. Reasonableness must also be judged against the applicant’s statutory onus under s 88K(3) to specify the terms of the easement and to provide a registrable plan. His Honour held that McHugh J’s observations in Lai Qin on costs in settled matters were of very limited assistance.
Pre-litigation Conduct
His Honour held that nothing Mr Kotroni did before the proceedings was unreasonable. Ms Doherty’s abandonment of her primary claims showed that he was entitled to exclude her from the part of the Access Track outside the easement, whatever might be said about “neighbourly good manners”. His opening offer, seeking $125,000, was a legitimate negotiating position, as were the plaintiffs’ offers of $1.
Alleged Tactical Withholding
Mr Kotroni’s affidavit for the costs application showed he had known the plaintiffs wanted the crossing at the causeway. His Honour held that this did not mean he knew precisely what they sought. Until February 2025 the s 88K claim was pleaded only in the alternative, so any preference he had about the crossing was irrelevant to the primary case. He also had no engineering advice until March 2025. It was reasonable for him to wait for a registrable plan, terms and engineering evidence before committing to a position. The plaintiffs’ claim that they would have agreed to the old bridge site was also contradicted by their own letter of 8 October 2025. Written after Mr Kotroni’s preference had been disclosed, it maintained that the easement should follow the existing track.
His Honour distinguished Jeffrey v Adams [2023] NSWSC 1270, which was decided after a contested hearing on very different conduct.
Bare Denials in the Defence
Scruby J accepted that Mr Kotroni’s bare denials of reasonable necessity and public interest did not identify the real issues in dispute. His position that he could not respond until a survey and terms were provided should have been pleaded as non-admissions. However, that position had been stated repeatedly in correspondence, and the litigation would not have run differently. This was no reason to depart from the statutory rule.
Benefit of the Easement
Mr Kotroni also owns two lots that benefit from the easement. His Honour held that this did not “move the dial very far”. It imposed no extra obligations on him as a defendant, and he must contribute to the costs of creating the easement like the other benefiting owners.
Outcome
Scruby J declined to make an order to the contrary and ordered the plaintiffs to pay Mr Kotroni’s costs of the proceedings. His Honour also rejected the claim for the costs of the interlocutory application and the proposal to share costs with the submitting defendants. Subject to any application within 7 days, the plaintiffs must also pay the first and seventh defendants’ costs of the costs application.
Analysis
The case shows that the statutory costs rule in s 88K(5) is hard to displace. An applicant who wants an easement must define it early, with a registrable plan, proposed terms, and engineering and valuation evidence where relevant. A respondent who reasonably insists on those materials before taking a position will not be penalised in costs. That holds even if they have a private preference, and even if their pleading could have been framed more carefully.
Anthony Strik accepts briefs in property and easement disputes. If you require experienced legal representation in the Supreme Court of NSW, please contact his chambers.
This is commentary, not advice about your case.