Harrison v Owen

Land and Environment Court

New South Wales

Medium Neutral Citation:	Harrison v Owen [2011] NSWLEC 143
Hearing dates:	22 August 2011
Decision date:	23 August 2011
Jurisdiction:	Class 3
Before:	Sheahan J
Decision:	Each party is to pay his own costs.
Catchwords:	COSTS: matter resolved by consent orders - principles to apply
Legislation Cited:	Civil Procedure Act 2005 Encroachment of Buildings Act 1922 Land and Environment Court Act 1979 Land and Environment Court Rules 2007 Uniform Civil Procedure Rules 2005
Cases Cited:	ONE.TEL Ltd v Deputy Commissioner of Taxation [2000] FCA 270; (2001) 101 FCR 548 Perpetual Trustees Victoria Ltd v Suncorp-Metway Ltd [2010] NSWLEC 12 Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin [1997] HCA 6; (1997) 186 CLR 622
Category:	Principal judgment
Parties:	Patrick Brian Harrison (Applicant) Edward Owen (Respondent)
Representation:	Ms L M Byrne, Barrister (Applicant) Mr R W Tregenza, Barrister (Respondent) Snelgroves (Applicant) Redmond Hale Simpson (Respondent)
File Number(s):	30185 of 2011

Judgment

Introduction

1. The substantive dispute in these encroachment proceedings was resolved by the making of consent orders at the commencement on 22 August 2011 of the first day of a scheduled two-day hearing.

1. The parties remain in dispute about the question of costs. The applicant sought an order for costs in the original class 3 application and now seeks an order that his costs be paid by the respondent on a party-party basis as agreed or assessed. The respondent says that there should be no order as to costs in respect of the period up to and including 7 July 2011, and that the applicant should be ordered to pay the respondent's costs from and including 8 July 2011.

Background

1. The encroachment occurs at the boundary between numbers 178 and 180 Nelson Street, Annandale. These are two of a set of four Victorian terraces of long standing, located within a conservation area. Mr Harrison and Mr Owen purchased their respective properties during or since 2002.

1. The then owner(s) of No.180 made an application to Leichhardt Council for consent for a first-storey addition in 2002. A condition of the consent (D/2001/895), dated 17 April 2002, was that the building not encroach on No.178 (condition 27).

1. Mr Harrison purchased No.178 on 23 July 2002, between the grant of the No.180 consent and the doing of the approved building work. He commenced Supreme Court proceedings in 2003 (matter 55039 of 2003) against the four previous owners of No.180 which was sold to Mr Owen on 5 June 2004. Mr Owen had purchased No.180 on notice of the encroachment, and, by contract, the vendors gave him an indemnity. He was joined in the Supreme Court proceedings prior to the end of 2004, as the fifth defendant. In his defence, filed 17 December 2004, Mr Owen relied on the indemnity.

1. Some elements of those Supreme Court proceedings are apparently stayed, and some are due back before the Supreme Court in early September 2011. There are some copies of relevant court documents among the evidence,…