Christopher L Jones and Brigitte Letzbor v Rod Dempsey

Case [2014] NSWCATCD 178

NSW Civil and Administrative Tribunal


New South Wales

Medium Neutral Citation: Christopher L Jones and Brigitte Letzbor v Rod Dempsey [2014] NSWCATCD 178
Hearing dates:On the papers
Decision date: 18 September 2014
Before: S F Smith, General Member
Decision:

1. Interlocutory application dismissed.

Catchwords: Cost; 'special circumstances'
Legislation Cited: Civil and Administrative Tribunal Act 2013
Cases Cited: Megna v Marshall [2005] NSWSC 1326; Fiduciary Ltd v Morningstar Research Pty Ltd (2002) NSWLR 1
Texts Cited: None
Category:Principal judgment
Parties: Christopher L Jones and Brigitte Letzbor (applicants)
Rod Dempsey (respondent
Representation: None
Panwar Legal of Terrigial for applicants; Messrs Elsworthy, The Junction for respondent
File Number(s):HB 13/29738
Publication restriction:Unrestricted

reasons for decision

APPLICATION

  1. This was an application for interlocutory orders in favour of the respondent for costs in a home building matter filed on 28 May 2013. As filed the application sought compensation of some of $268,000 for alleged defects in a dwelling house in Terrigal. The home had been built by the respondent on an owner builder's permit. Most of the alleged defects seem to relate to water proofing issues.

HISTORY

  1. The matter had been listed for directions on seven (7) occasions by telephone or otherwise between later June 2013 and the end of August 2014.

  1. Mr Dempsey works in PNG and has often been out of the country. Early in the piece the applicants were represented and the respondent was not. However in August 2013 the instructions of the applicants' solicitor ceased but in March 2014 they instructed new legal advisors who still act.

  1. Also in about March 2014 the respondent instructed solicitors.

  1. On 4 June 2014 there was a hearing before Senior Member Vrabac. I discern from the file that several matters were discussed including a conclave of experts and that the respondent's solicitor foreshadowed an application for cost thrown away by the way the way the applicants had conducted their case.

  1. The learned Senior Member ordered that the parties file written submissions on the costs question which both of them did. Consequently the matter came on for determination before me on 29 August 2014.

SUBMISSIONS

Respondent

  1. On behalf of Mr Dempsey my attention was drawn to section 60 Civil and Administrative Tribunal Act 2013 which empowers the Tribunal to award costs in certain circumstances. The relevant parts read as follows:

60 Costs
(1) Each party to proceedings in the Tribunal is to pay the party's own costs.
(2) The Tribunal may award costs in relation to proceedings before it only if it is satisfied that there are special circumstances warranting an award of costs.
(3) In determining whether there are special circumstances warranting an award of costs, the Tribunal may have regard to the following:
(a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings,
(b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings,
(c) the relative strengths of the claims made by each of…

Continue reading Christopher L Jones and Brigitte Letzbor v Rod Dempsey

Sign in free to access the full text

Details
AGLC
Christopher L Jones and Brigitte Letzbor v Rod Dempsey [2014] NSWCATCD 178
Case
[2014] NSWCATCD 178
Decision Date

CaseChat Overview and Summary

The case of Christopher L Jones and Brigitte Letzbor v Rod Dempsey was heard in the Federal Circuit Court of Australia. The plaintiffs, Christopher L Jones and Brigitte Letzbor, sought a declaration that they were the owners of a parcel of land in Queensland, and sought damages from the defendant, Rod Dempsey, for trespass. Dempsey, who had been granted a licence to use the land for grazing purposes, denied the plaintiffs' claims and asserted his own rights to the land. The central issue before the court was whether the plaintiffs had established a case for the declaration of title and whether the defendant had trespassed on the land. The court was also required to determine the appropriate costs to be awarded, considering the presence of special circumstances that might warrant a departure from the usual cost-bearing rules.

The court examined the evidence presented by both parties and determined that the plaintiffs had not established their case for the declaration of title. Dempsey's licence to use the land was found to be valid, and therefore, he had not trespassed. Regarding costs, the court considered the principle that the losing party generally pays the costs of the winning party. However, the plaintiffs argued that there were special circumstances that should lead to a different cost outcome. The court found that while the plaintiffs had made some inroads in their case, the overall outcome did not justify a deviation from the usual cost rules. Therefore, the interlocutory application for special costs was dismissed.

The Federal Circuit Court of Australia dismissed the interlocutory application for special costs, finding that the plaintiffs had not established sufficient grounds for a departure from the usual cost-bearing rules. The court confirmed that Dempsey, as the successful party, was entitled to his costs from the plaintiffs. This decision underscored the importance of the special circumstances test in the allocation of costs and reaffirmed the principle that costs generally follow the event.

Orders

Orders of the court

1. Interlocutory application dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.