Attard v Canal [No 2] - [2005] NSWLEC 325

Land and Environment Court

of New South Wales

CITATION:
Attard & Anor v Canal & Anor [No 2] [2005] NSWLEC 325

PARTIES:
APPLICANTS:
Frank Attard and Sylvia Attard
RESPONDENTS:
Luigino Antonio Canal and Guiseppina Maria Canal

FILE NUMBER(S):
31227 of 2004

CORAM:
Pain J

KEY ISSUES:
Costs :- exercise of discretion to award costs

LEGISLATION CITED:
Encroachment of Buildings Act 1922 s 14
Land and Environment Court Act 1979 s 69

CASES CITED:
Droga v Proprietors of Strata Plan No 51722 (Bignold J, NSWLEC, 28 November 1997, unreported);
Hofer v Howell (2001) 113 LGERA 391;
Kell & Anor v Szelid & Anor (Stein J, NSWLEC, 30 May 1994, unreported);
Morris v Thomas (1991) 73 LGRA 164;
Wherry v Trustees of the Sisters of Charity of Australia [2001] NSWLEC 210

DATES OF HEARING: 16/06/2005

DATE OF JUDGMENT:

06/17/2005

LEGAL REPRESENTATIVES:
APPLICANTS:
Mr A Pickles (barrister)
SOLICITORS:
Robilliard & Robilliard
RESPONDENTS:
Mr A Thompson (barrister)
SOLICITORS:
G Cerin

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Pain J

17 June 2005

31227 of 2004 Frank Attard & Anor v Luigino Antonio Canal & Anor [No 2]
JUDGMENT

1 Her Honour: These proceedings are an application for costs brought by the Applicants. On 12 May 2005, I handed down judgment in Attard & Anor v Canal & Anor [2005] NSWLEC 222 and held that the Applicants were entitled to a transfer of the encroaching land from the Respondents. On 3 June 2005, I made the following orders:

1. The Respondents transfer to the Applicants, that land currently forming part of lot 119 DP 31359 between the existing post and wire fence and Colorbond fence located on lot 119 DP 31359 and the existing boundary of lot 118 DP 31359, as shown in Attachment 1 (“the boundary adjustment);
2. The Applicants arrange for the preparation for lodgement and registration at the Land Titles Office, of a deposited plan showing the boundary adjustment in Order 1;
3. The Applicants submit to the Respondent a transfer for the land the subject of the boundary adjustment;
4. The Respondents to execute any Deposited Plan and transfer submitted by the Respondents pursuant to Order 3;
5. Upon signing of the transfer and return by the Respondents the Applicants pay the Respondents $77,500 as compensation for the transfer of land referred to in Order 1;
6. The Applicants to meet all costs in respect of the registration of the deposited plan and transfer referred to in Orders 2, 3, and 4;
7. Costs reserved.

2 At [10] – [14] of my judgment I set out the circumstances giving rise to the proceedings. These disclose the Applicants’ shed encroachment in 1999 was inadvertent and neither party was aware until 28 September 2003 that the encroachment had occurred. In [56] of my judgment I held the Applicants’ had not been negligent in causing the encroachment.

3 The Applicants submitted that costs should follow the event and that they should be entitled to costs on the basis that they…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Attard v Canal [No 2]

Details

AGLC: Attard v Canal [No 2] [2005] NSWLEC 325
Case: [2005] NSWLEC 325
Decision Date: 06/17/2005

CaseChat Overview and Summary

This case involved an application for costs by Frank and Sylvia Attard against Luigino Antonio Canal and Guiseppina Maria Canal. The Applicants sought costs after the Court had made orders for the transfer of encroaching land and the payment of compensation to the Applicants. The Applicants argued that costs should follow the event and that they were entitled to costs because they were successful in obtaining the orders they sought. They also argued that offers made before the commencement of proceedings should be taken into account. The Respondents argued that it was not automatic that costs should follow the event and that an order should be made that each party pay its own costs.

The Court considered the wide discretion it has under s 69 of the Land and Environment Court Act 1979 in relation to the award of costs. The Court accepted that it is usual for costs to follow the event in matters of this type, but subject to the Court’s discretion not to take that approach in a particular case. The Court also considered the offers made by the Applicants before the commencement of proceedings. While the Respondents had not acted unreasonably in refusing the Applicants’ offers, the Court considered it appropriate that the Respondents pay half the costs of the Applicants in these proceedings.

The Court ordered that the Respondents pay half the costs of the Applicants in these proceedings and that each party pay their own costs of the costs application. This decision highlights the importance of considering all the circumstances in assessing costs, including the nature of the proceedings and the parties’ conduct, when exercising the Court’s discretion. It also emphasises the need to consider offers made before the commencement of proceedings as provided for by s 14 of the Encroachment of Buildings Act 1922.

Orders