Lo v Iverach

Case [2009] NSWCA 92

New South Wales


Court of Appeal


CITATION: Lo and Anor v Iverach and Anor [2009] NSWCA 92
HEARING DATE(S): 27 April 2009
 
JUDGMENT DATE: 
30 April 2009
JUDGMENT OF: Allsop P; Giles JA; Macfarlan JA
DECISION: Notice of motion filed on 2 September 2008 dismissed with costs. [Note: subsequently the costs were ordered on an indemnity basis.]
CATCHWORDS: COSTS - assessment after conclusion of proceedings - not arguable that proceedings had not concluded - continued contention that proceedings were interlocutory an abuse of process.
CASES CITED: General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125;
House v The King (1936) 55 CLR 499;
Transglobal Capital Pty Ltd v Yolarno Pty Ltd [2004] NSWCA 136; (2004) 60 NSWLR 143.
PARTIES: Michelle Lo & Joseph Lo - Applicants
James Saville Iverach & Kaylene Gai Iverach - Respondents
FILE NUMBER(S): CA 40233/03
COUNSEL: Mrs M Lo in person
P Marsh (Solicitor) - Respondents
SOLICITORS: Paul Marsh, Strathfield - Respondents
LOWER COURT JUDICIAL OFFICER: Bell JA (18 August 2008)





                          CA 40233/03

                          ALLSOP P
                          GILES JA
                          MACFARLAN JA

                          Thursday 30 April 2009
LO & ANOR v IVERACH & ANOR
Judgment

1 THE COURT: The applicants, Mr and Mrs Lo, were represented by Mrs Lo appearing in person. They applied on a notice of motion filed on 2 September 2008 in proceedings 40233/03, a summons filed in the Court of Appeal on 28 March 2003. By that summons Mr and Mrs Lo applied for an extension of time to apply for leave to appeal from a decision given by Palmer J in October 2002 in proceedings 4246/02 and for leave to appeal from that decision. The summons was dismissed with costs in April 2004. The present application is an application to vary or discharge an order made by Bell JA refusing to set aside the Registrar’s dismissal of a notice of motion filed in proceedings 40233/03 in July 2008.

2 The application came after a long history. An account of the circumstances in which it was made can be compiled from the materials before us as follows.

3 Mr and Mrs Lo owned land at Menai. The land had the benefit of a right of way over adjoining land. The owners of the adjoining land gave permission to the respondents, Mr and Mrs Iverach, to use the part the subject of the right of way for access to their land in connection with construction of a swimming pool. Although initially giving permission, Mr and Mrs Lo came to complain of interference with their use and enjoyment of the right of way.

4 In the proceedings heard by Palmer J Mr and Mrs Lo claimed against Mr and Mrs Iverach, and also their contractor who is not a respondent to the notice of motion and need not further be mentioned, an injunction to restrain interference with their use and enjoyment of the right of way and damages. Palmer J dismissed the claims. He did not consider that the interference…

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Lo v Iverach [2009] NSWCA 92
Case
[2009] NSWCA 92
Decision Date

CaseChat Overview and Summary

The parties to this proceeding were Lo and Iverach. The dispute concerned the assessment of costs following the conclusion of earlier proceedings. The Court of Appeal of New South Wales was required to determine whether the earlier proceedings had concluded, and if so, whether the continued contention that they were interlocutory constituted an abuse of process.

The central legal issue before the Court was whether the proceedings had reached a final conclusion, thereby entitling the respondent to seek costs. The applicant had argued that the proceedings were still interlocutory, a position the Court found to be unarguable. Consequently, the Court considered whether this persistent assertion, in the face of the proceedings having concluded, amounted to an abuse of process.

The Court reasoned that the earlier proceedings had indeed concluded, and therefore the applicant's argument that they remained interlocutory was without merit. The Court found that the applicant's continued contention was an abuse of process. The notice of motion filed on 2 September 2008 was dismissed with costs, and subsequently, these costs were ordered on an indemnity basis.

Orders

Orders of the court

Notice of motion filed on 2 September 2008 dismissed with costs. [Note: subsequently the costs were ordered on an indemnity basis.]

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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