Gabriel v Billett (No 2)

[2023] NSWLEC 123

Land and Environment Court

New South Wales

Medium Neutral Citation:

Gabriel v Billett (No 2) [2023] NSWLEC 123

Hearing dates:

On the papers (written submissions filed 28 and 29 August 2023)

Date of orders:

15 November 2023

Decision date:

15 November 2023

Jurisdiction:

Class 3

Before:

Robson J

Decision:

See orders at [35]

Catchwords:

COSTS — Class 3 proceedings — Discretion under Encroachment of Buildings Act 1922 (NSW) — General rule costs should follow the event — Whether usual costs rule is just in the circumstances where offers of compromise were made — Whether reasonable for parties to reject offers — Whether indemnity costs order should be made — Impecuniosity of party — Unsuccessful applicant to pay 50 per cent of respondent’s costs of primary proceedings

Legislation Cited:

Dividing Fences Act 1991 (NSW)

Encroachment of Buildings Act 1922 (NSW), s 14

Uniform Civil Procedure Rules 2005 (NSW), r 20.26

Cases Cited:

Calderbank v Calderbank [1975] All ER 333

Gabriel v Billett [2023] NSWLEC 85

Hofer v Howell Developments Pty Ltd [No 2] [2001] NSWLEC 42; (2001) 113 LGERA 391

James v Douglas [2016] NSWCA 178

Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11

Perpetual Trustees Victoria Ltd v Suncorp-Metway Ltd [2010] NSWLEC 12

Tzavellas v Canterbury City Council (1999) 105 LGERA 262

Category:

Costs

Parties:

Eric Stephen Gabriel (Applicant)
Karen Billett (Respondent)

Representation:

Counsel:
E S Gabriel, self-represented (Applicant)
L Nurpuri (Respondent)

Solicitors:
Self-represented (Applicant)
Daniel Butt & Co Solicitors (Respondent)

File Number(s):

2023/00011710

Publication restriction:

Nil

Judgment

1. In Gabriel v Billett [2023] NSWLEC 85, I determined a Class 3 application filed 12 January 2023 (and subsequently amended 16 May and 17 July 2023) by Eric Stephen Gabriel, the owner of land known as 10 Clyde Street, Maclean, seeking relief under the Encroachment of Buildings Act 1922 (NSW) (‘Encroachment Act’) against Karen Billett, the owner of adjacent land known as 7 Morven Street, Maclean.

2. The proceedings related to an encroachment by an old timber and metal shed emanating from Mr Gabriel’s property, part of which traversed upon Ms Billett’s property. In my reasons for judgment (on 15 August 2023) ordering the removal of the encroachment from Ms Billett’s land, I reserved the question of costs.

3. The substantive proceedings having been finalised, Ms Billett now seeks an order for costs against Mr Gabriel, including an order that some of those costs be paid on an indemnity basis. Mr Gabriel resists any costs order sought against him, arguing that each party should bear their own costs of the proceedings.

4. The parties provided detailed written submissions setting out their respective positions as well as supporting affidavit evidence and the matter proceeded on the papers. Mr Gabriel relies on his affidavit sworn 4 September 2023 and Ms Billett relies on the affidavit of Daniel Francis Butt, her solicitor, sworn 28 August 2023.

5. For the reasons that follow, I find that Mr Gabriel should pay 50 per cent of Ms Billett’s costs of the proceedings, and that each…