Johnston v Cutbush

[2025] NSWLEC 130

Land and Environment Court

New South Wales

Medium Neutral Citation:

Johnston v Cutbush [2025] NSWLEC 130

Hearing dates:

15 October 2025

Date of orders:

17 November 2025

Decision date:

17 November 2025

Jurisdiction:

Class 3

Before:

Duggan J

Decision:

See orders at [34]

Catchwords:

COSTS – application for costs in Class 3 proceedings – Encroachment of Buildings Act 1922 (NSW), ss 14 and 15 – Civil Procedure Act 2005 (NSW), s 98 – Uniform Civil Procedure Rules 2005 (NSW), r 42.1 – whether the Applicant’s conduct disentitled costs – Respondents to pay the Applicant’s costs

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 98

Encroachment of Buildings Act 1922 (NSW), ss 14, 15

Land and Environment Court Rules 2007 (NSW), r 7.3

Uniform Civil Procedure Rules 2005 (NSW), r 42

Cases Cited:

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

Johnston v Cutbush [2025] NSWLEC 1482

Category:

Costs

Parties:

Skye Noel Johnston (Applicant)
Peter William Cutbush (First Respondent)
Shachi Estler (Second Respondent)

Representation:

Counsel:
LA Walsh (Applicant)
C Simpson (Respondents)

Solicitors:
Castrikum Adams Legal (Applicant)
Somerville Laundry Lomax (Respondents)

File Number(s):

2024/00238835

Publication restriction:

Nil

JUDGMENT

Nature of Proceedings

1. These proceedings concerned an application under the Encroachment of Buildings Act 1922 (NSW) (the Act) for the removal of structures on the Applicant’s land in the locality of Rosebank. The Respondents are the encroaching owners.

2. Commissioner Gray determined the substantive proceedings in Johnston v Cutbush [2025] NSWLEC 1482 (the Substantive Decision), requiring the Respondents remove the structures from the Applicant’s land.

3. The Applicant now seeks that the Respondents pay the costs of the substantive proceedings and the hearing on costs. The Respondents opposes such an order or alternatively seeks an order that the Respondents pay one-third of the Applicant’s costs.

Facts

4. In October 2022, the parties attended mediation and entered into heads of agreement (HoA). On 11 July 2023, the Applicant’s solicitor notified the Respondents that the Applicant no longer wished to proceed with the HoA.

5. On 28 June 2024, the Applicant commenced the Class 3 proceedings under the Act.

6. On 7 July 2025, the Commissioner delivered the Substantive Decision. At [3] of the Substantive Decision the Commissioner identified the structures the subject of the application under the Act (the Structures):

3    The structures that arise for consideration include the following:

(1)    A detached studio that encroaches onto the applicant’s land by up to 5.57m (including its eaves), which is equipped with a solar hot water system, air conditioning units, 2 satellite dishes and a TV antenna;

(2)    A detached building containing a waterless composting toilet (WCT) located wholly on the applicant’s land but that services the studio and is connected to it by a paved area and underground electrical conduit;

(3)    A grey water tank that forms part of a system of sewage management, located wholly on the applicant’s land but connected to the WCT by underground pipework and to a reed bed and absorption trenches located on the respondents’ land; and