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Glaser v Poole (No 2)

Glaser v Poole (No 2)

Case [2010] NSWLEC 232 12 November 2010

Civil Litigation & Procedure

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Land and Environment Court

of New South Wales

CITATION: Glaser v Poole (No 2) [2010] NSWLEC 232

PARTIES:
In 30948 of 2009
APPLICANT
Amanda Poole
RESPONDENTS
Ivan Glaser
Diane Glaser
In 40276 of 2010
APPLICANTS
Ivan Glaser
Diane Glaser
RESPONDENT
Amanda Poole

FILE NUMBER(S): 30948 of 2009; 40279 of 2010

CORAM: Pain J

KEY ISSUES: COSTS :- exercise of court's discretion - whether costs should be awarded on an indemnity basis in class 3 and class 4 proceedings

LEGISLATION CITED: Civil Procedure Act 2005 s 98
Encroachment of Buildings Act 1922 s 4(1), s 14, s 15
Environmental Planning and Assessment Act 1979 Pt 4A
Land and Environment Court Rules 2007 r 3.7
Uniform Civil Procedure Rules 2005 r 42

CASES CITED: Baillieu Knight Frank (NSW) Pty Ltd v Ted Manny Real Estate Pty Ltd (1992) 30 NSWLR 359
Ballina Shire Council v Stubberfield (No 2) [2006] NSWLEC 538
Baulderstone Hornibrook Engineering Pty Limited v Gordian Runoff Limited (No 2) [2009] NSWCA 12
Colgate Palmolive Co v Cussons Pty Limited (1993) 118 ALR 248
FAI General Insurance Co Ltd v Burns [1996] NSWCA 177; (1996) 9 ANZ Ins Cas 61-384
Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Ltd (1988) 81 ALR 39
Glaser v Poole [2010] NSWLEC 143
Latoudis v Casey (1990) 170 CLR 534
Packer v Meagher [1984] 3 NSWLR 486
Re Wilcox; ex parte Venture Industries Pty Ltd (No 2) (1996) 72 FCR 151
Rosniak v Government Insurance Office (1997) 41 NSWLR 608
Westfield Management Ltd & Ors v Direct Factory Outlets Homebush Pty Ltd & Ors (No 4) [2005] NSWLEC 168

DATES OF HEARING: 8 November 2010

DATE OF JUDGMENT:
12 November 2010

LEGAL REPRESENTATIVES:
In 30948 of 2009
APPLICANT
Mr I Hemmings
SOLICITOR
M E McMahon & Associates
RESPONDENTS
Mr P Tomasetti SC
SOLICITOR
Gerald Aronstan
In 40276 of 2010
APPLICANTS
Mr P Tomasetti SC
SOLICITOR
Gerald Aronstan
RESPONDENT
Mr I Hemmings
SOLICITOR
M E McMahon & Associates

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

PAIN J

12 November 2010

40276 of 2010 Glaser v Poole (No 2)
30948 of 2009 Poole v Glaser

JUDGMENT

1 Her Honour: In Glaser v Poole [2010] NSWLEC 143 (Glaser No 1) (Class 4 proceedings) I made certain orders requiring Mrs Poole to remove a masonry pool deck and room area erected without development consent at the rear of her property, inter alia. The structure encroached onto the Glasers’ land and the land of another neighbour. Mrs Poole’s property is on top of a cliff at the rear of the Glasers’ property. The Glasers now seek their costs of the Class 4 proceedings on an indemnity basis.

2 The Class 3 proceedings under the Encroachment of Buildings Act 1922 (the EB Act) (matter no 30948 of 2009) were commenced by Mrs Poole against the Glasers and another neighbour on 12 December 2009. The Class 3 proceedings sought an order that Mrs Poole be granted a conveyance transfer or lease of the…

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 Glaser v Poole (No 2)

Details

AGLC: Glaser v Poole (No 2) [2010] NSWLEC 232
Case: [2010] NSWLEC 232
Decision Date: 12 November 2010

CaseChat Overview and Summary

The parties to this case are Amanda Poole and Ivan and Diane Glaser. The dispute arose when Mrs Poole built a structure that encroached on the Glasers’ land and that of another neighbour. The Glasers sought removal of the structure in Class 4 proceedings and the Glasers counterclaimed in Class 3 proceedings. The Glasers now seek their costs on an indemnity basis in both matters. The only issue before the court is whether the costs should be awarded on an indemnity basis in one or both proceedings. The court found that the Glasers were entitled to indemnity costs in the Class 3 proceedings but not in the Class 4 proceedings. The court ordered that the Pooles pay the Glasers’ costs on an indemnity basis in the Class 3 proceedings and on a party/party basis in the Class 4 proceedings. Each party is to bear its own costs of the hearing on indemnity costs.

Orders