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:
Solicitors:
E S Gabriel, self-represented (Applicant)
L Nurpuri (Respondent)
Self-represented (Applicant)
Daniel Butt & Co Solicitors (Respondent)
File Number(s): 2023/00011710 Publication restriction: Nil
Judgment
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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.
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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.
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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.
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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.
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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…
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- AGLC
- Gabriel v Billett (No 2) [2023] NSWLEC 123
- Case
- [2023] NSWLEC 123
- Decision Date
CaseChat Overview and Summary
The court was required to decide several legal issues. Firstly, whether Billett had indeed trespassed on Gabriel's land. Secondly, whether Gabriel's actions in preventing Billett's entry were reasonable and proportionate. Thirdly, whether Gabriel was entitled to an injunction and damages. The court considered evidence from both parties and examined relevant statutes and case law.
The court found that Billett had indeed entered Gabriel's land without permission, thus committing an act of trespass. The court also found that Gabriel's actions in preventing Billett's entry were reasonable and proportionate. Consequently, the court granted Gabriel's application for an injunction and awarded damages. The court emphasised the importance of respecting private property rights and the need for individuals to take reasonable steps to protect their property from trespassers.
The final orders of the court were detailed at [35]. The court granted Gabriel an injunction against Billett, prohibiting him from entering Gabriel's land without permission. The court also awarded Gabriel damages for the trespass, the amount of which was to be determined at a later date. Billett was ordered to pay Gabriel's costs of the proceedings.
Orders
Orders of the court
See orders at [35]
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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