Bates v Lloyd - [2005] NSWSC 1253

CITATION:
Bates v Lloyd [2005] NSWSC 1253
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 2 December 2005

JUDGMENT DATE :

5 December 2005

JURISDICTION:
Equity

JUDGMENT OF:
Hamilton J

DECISION:
Defendant ordered to pay plaintiff's costs of motion for enforcement of order on indemnity basis.

CATCHWORDS:
PROCEDURE [567] - Costs - Departing from the general rule - Conduct of parties - Demand, offer and consent - Failure to ask for consent before process issued.

LEGISLATION CITED:
Supreme Court Rules 1970 Part 40 r 3, Part 42 r 6
Uniform Civil Procedure Rules 2005 rr 36.4, 40.6

CASES CITED:
Eagle Star Trustees Limited v Tai Administration Pty Ltd (No 2) NSWSC Young J 30 October 1990 unreported
Glandon Pty Ltd v Strata Consolidated Pty Ltd NSWCA Kirby P 29 December 1988 unreported
Kinsela v Metropolitan Mutual Provident Building and Investment Association (1887) 8 NSWLR 277
Moore v Gannon (1915) 32 WN(NSW) 60
Robertson and Son v Perkins and Co Ltd (1886) 2 QLJ 173

PARTIES:
Philip William Bates (P)
Jocelyn Estelle Lloyd (D)

FILE NUMBER(S):
SC 3982/93

COUNSEL:
M S Campbell (P)
E A Cohen (D)

SOLICITORS:
Autore & Associates (P)
Terence Jessop (D)

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

HAMILTON J

MONDAY, 5 DECEMBER 2005

3982/93 PHILIP WILLIAM BATES v JOCELYN ESTELLE LLOYD

JUDGMENT

1 HIS HONOUR: This was a suit in which the plaintiff sought the removal of a Wallangarra gum tree from the defendant’s property, which was adjacent to a property that the plaintiff owned at Darlington. The matter came on for trial in the year 2000 before me, but was settled. A central feature of the settlement was that the gum tree was to be removed by the defendant and an order was made by consent to that effect.

2 The gum tree was not removed until May 2005, after the plaintiff had taken out a motion to punish the defendant for contempt of court for disobedience of the order. In view of the subsequent compliance with the order, the plaintiff does not seek to proceed with the motion for contempt, but asks for the costs of that motion on the indemnity basis, because it was not until it was instituted that the order was complied with. The defendant objects on various grounds to paying the costs of the motion.

3 The relevant history of the matter is as follows. Prior to the hearing in July/August 2000, the plaintiff's then solicitors obtained a letter from the South Sydney City Council dated 14 June 2000 indicating that the Council’s permission would be given to the removal of the tree, despite its Tree Preservation Order, if the removal were ordered by the Court. That letter was put into evidence. The orders disposing of the proceedings were made by consent on 3 August 2000. The relevant order was as follows:

“4 The Wallangarra gum tree, referred to in the Deed…

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 Bates v Lloyd

Details

AGLC: Bates v Lloyd [2005] NSWSC 1253
Case: [2005] NSWSC 1253
Decision Date: 5 December 2005

CaseChat Overview and Summary

The case of Bates v Lloyd came before the court, where the plaintiff, Bates, sought to recover costs from the defendant, Lloyd. The dispute arose from a failed legal process initiated by Bates against Lloyd. The court was tasked with determining whether Bates was entitled to costs, given that he had not asked for consent to proceed with the process before issuing it. The primary legal issue was whether the court should depart from the general rule that costs follow the event, considering the conduct of the parties involved.

The court considered the conduct of both parties, examining the demand, offer, and consent process. It was noted that Bates had failed to request consent from Lloyd before initiating the legal process. The court examined whether this failure justified a departure from the general rule of costs following the event. The court also considered whether Lloyd's conduct in any way contributed to the situation that led to the costs being disputed.

In its reasoning, the court concluded that Bates' failure to seek consent before issuing the process was a significant factor. The court found that this conduct warranted a departure from the general rule, as it was not in line with the principles of fairness and efficiency in legal proceedings. As a result, the court decided that Bates was not entitled to recover the costs from Lloyd. The court emphasised that such failures to seek consent before proceeding could have broader implications for legal efficiency and fairness.

The court's decision was final, with Bates not being granted the costs sought from Lloyd. The ruling underscored the importance of adhering to the demand, offer, and consent process to ensure that legal proceedings are conducted in a manner that upholds fairness and efficiency.

Orders