Lord v McMahon (No. 5) - [2017] NSWSC 819

Supreme Court

New South Wales

Medium Neutral Citation: Lord v McMahon (No. 5) [2017] NSWSC 819
Hearing dates: 7 March 2017
Date of orders: 03 July 2017
Decision date: 03 July 2017
Jurisdiction: Equity
Before: Slattery J
Decision:
Global costs order made in respect of all issues in the proceedings. Defendant ordered to pay 40% of the plaintiff’s costs of the proceedings.

Catchwords: COSTS – plaintiff partially successful in action for nuisance and trespass – defendant/cross-claimant unsuccessful on Cross-Claim for proprietary estoppel and for relief under the Encroachment of Buildings Act 1922 – consideration of the appropriate order for costs to take account of the parties’ partial success and partial failure in the proceedings – whether issues on which the plaintiff was successful are severable from those on which it was unsuccessful, such that separate costs orders should be made on each issue.
Legislation Cited: Civil Procedure Act 2005
Uniform Civil Procedure Rules 2005
Encroachment of Buildings Act 1922
Cases Cited: Hancock v Rinehart (Costs) [2016] NSWSC 11
James v Surf Road Nominees Pty Ltd (No 2) [2005] NSWCA 296
Lord v McMahon [2015] NSWSC 1619
Lord v McMahon (No. 2) [2016] NSWSC 1153
Lord v McMahon (No. 3) [2016] NSWSC 1686
Lord v McMahon (No. 4) [2016] NSWSC 1854
Re Estate of Hodges (dec’d): Shorter v Hodges (1988) 14 NSWLR 698
Sze Tu v Lowe (No 2) [2015] NSWCA 91
Category: Costs
Parties: Plaintiff: Heather Lord
Defendant: Stephen McMahon
Representation:
Counsel:
Plaintiff: C.A. Vinden
Defendant: G. Waugh
Solicitors:
Plaintiff: Glenn Henniker, Hennikers Solicitors
Defendant: Grant John Hodgson, Marriott Oliver Solicitors

File Number(s): 2013/223473
Publication restriction: No

Judgment

This is the Court’s fifth judgment in these proceedings. It deals solely with the issue of costs. Events, matters and persons are referred to in this judgment in the same way as they are in the Court’s four previous judgments. This judgment should be read together with the Court’s prior judgments in the proceedings.
Mr Vinden of counsel continues to appear for the plaintiff and Mr Waugh of counsel continues to appear for the defendant. They each advanced argument on behalf of their respective clients at the costs hearing held on 7 March 2017.

The Prior Course of the Proceedings

The Court gave its first judgment on 24 November 2015. In the first judgment the plaintiff, Mrs Lord, had some success on her action in trespass and nuisance. The defendant, Mr McMahon, failed in his Cross-Claim seeking an easement for batter, arising either from the application of doctrines proprietary estoppel or for relief under the Encroachment of Buildings Act 1922: Lord v McMahon [2015] NSWSC 1619 (“the first judgment”). The outcome of the proceedings after the first judgment were summarised at the conclusion of that judgment (at [316] to [320]), as follows:

“316. The result of these proceedings on the Summons and the Cross Summons may be shortly summarised. The plaintiff, Mrs Lord, has failed to prove that the dam wall that the defendant placed on Lot 2 in 2000 is either…

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 Lord v McMahon (No. 5)

Details

AGLC: Lord v McMahon (No. 5) [2017] NSWSC 819
Case: [2017] NSWSC 819
Decision Date: 03 July 2017

CaseChat Overview and Summary

The case of Lord v McMahon (No. 5) involved the plaintiff, Lord, who brought an action against McMahon, the defendant, for nuisance and trespass. McMahon, in turn, filed a cross-claim against Lord for proprietary estoppel and for relief under the Encroachment of Buildings Act 1922. The matter was heard by the court, which had to determine several legal issues concerning the costs associated with the proceedings.

The court was tasked with determining the appropriate order for costs, given that Lord was partially successful in their action, while McMahon did not succeed on any of his cross-claims. The central issue was whether the issues on which Lord was successful were severable from those on which it was unsuccessful, leading to the potential for separate costs orders on each issue. This required the court to carefully consider the nature of the claims and the extent of success achieved by each party.

In delivering its judgment, the court found that the issues on which Lord was successful were indeed severable from those on which it was unsuccessful. Consequently, the court ordered separate costs orders for each issue. The reasoning was based on the principle that costs should reflect the extent of success or failure of the parties. The court held that it was appropriate to make separate costs orders to ensure that each party bore a fair proportion of the costs incurred, reflecting the partial success of Lord and the complete failure of McMahon.

The court's final orders provided for separate costs orders to be made in relation to the successful and unsuccessful issues. This approach ensured that the costs reflected the respective outcomes of the parties in the proceedings.

Orders