Mason Place Body Corporate v. Hall & Ors
[2007] QSC 156
•3 July 2007
SUPREME COURT OF QUEENSLAND
CITATION:
Mason Place Body Corporate Community Titles Scheme 5814 v Hall & Ors [2007] QSC 156
PARTIES:
MASON PLACE BODY CORPORATE COMMUNITY TITLES SCHEME 5814
(plaintiff)
V
RUSSELL HALL AND JENNIFER CARPENTER-HALL AND JOSHUAL HALL AS TRUSTEES FOR THE PROSPERITY SUPERANNUATION FUND
(defendant)
FILE NO/S:
BS3936/06
DIVISION:
Trial division
PROCEEDING:
Trial
ORIGINATING COURT:
Supreme Court of Queensland
DELIVERED ON:
3 July 2007
DELIVERED AT:
Brisbane
HEARING DATE:
4 June 2007
JUDGE:
Moynihan J
ORDER:
1. I order that the defendants pay the plaintiff’s costs of the determination of issues pursuant to the order of 18 April 2007 to be assessed on a standard basis.
CATCHWORDS:
PROCEDURE – COSTS – GENERAL RULE – COSTS FOLLOW THE EVENT – COSTS OF THE ISSUES – whether costs should follow the event
Uniform Civil Procedure Rules 1999 (Qld) 211, 553, 682, 689
Malliate v Sharpe [2001] NSWSC 1057, considered.
COUNSEL:
APJ Collins for the plaintiff.
PR Smith for the defendant.
SOLICITORS:
Woodgate Hughes Solicitors for the plaintiff.
Fraser Power Solicitor for the defendant.
MOYNIHAN J: This is a determination of the costs order to be made in these proceedings following a consent order made on 4 June 2007.
The plaintiff and the defendants have adjoining land at Moorooka. On 11 May 2006 the plaintiff sued the defendants seeking an injunction restraining them from causing nuisance to the plaintiff’s property as a result of roots of a tree on the defendant’s land growing on to the plaintiff’s and causing damage there. There was extensive correspondence between the parties and their solicitors concerning the issue over a number of years.
Alternatively, the plaintiff sought an injunction to cause the defendants to take steps to stop the nuisance causing damage. There was also a claim for $100,000 damages for the nuisance. The defendants put the nuisance in issue and sought disclosure and particulars.
On 14 November 2006 the plaintiff sought an interlocutory injunction restraining the defendants from causing or continuing the nuisance constituted by the root system of the tree. There was a further claim for an injunction requiring the defendants to cause the root system to be removed from the plaintiff’s property.
On 6 December 2006 Fryberg J dismissed the plaintiff’s application for an interlocutory injunction and gave the following direction:
1.The matter be certified for a speedy trial.
2.The parties complete disclosure in accordance with UCPR 211 on or before 22 December 2006.
3.Any required inspection, testing or experimentation to be conducted by the defendants’ independent experts on the plaintiff’s land be so conducted on or before 22 December 2006.
4.The plaintiff serve any independent expert reports in response on or before 19 January 2007.
5.By 19 January 2007, the parties confer with a view to engaging joint experts to provide any reports in respect of any matters of expert evidence upon which either party intends to rely.
6.Any joint reports obtained by the parties be made available on or before 2 February 2007.
7.The parties participate in a conference in accordance with UCPR 553 on or before 9 February 2007.
8.If the action is unable to be resolved at the conference, the parties sign and file a request for trial date on or before 16 February 2007.
On 18 April 2007 on the plaintiff’s application I ordered the separate determination of the following issues:
1. Whether the tree constituted a nuisance;
2. If it did whether the defendants were liable;
3. If the answers to 1. and 2. were affirmative what remedy, if any, should be granted.
Directions were given as to the conduct of the proceeding.
The matter was set down for hearing for two days commencing 4 June 2007. On that day the defendants consented to a declaration that the tree constituted and continues to constitute an actionable nuisance at the suit of the plaintiff against the defendants and an order that the defendants be restrained from causing or permitting the tree roots to encroach on the plaintiff’s property so as to cause nuisance.
Whether the defendants satisfy that requirement by the removal of the tree or the building of a root barrier and associated work is a matter of their compliance with the order made by consent. Put another way, whatever steps the defendants take must effectively deal with the nuisance.
It was also agreed as a fact that on and from 20 January 2005 the defendants were aware of the encroachment of the tree roots on to the plaintiff’s property although the plaintiff reserved its rights to establish that this had been known earlier.
The action was originally defended on the defendant’s behalf by an insurer but, for reasons which are not disclosed and which it is unnecessary to know, the insurer withdrew and the defendants ultimately retained their current solicitors. The plaintiff provided a chronology[1] and the defendant a chronology[2] which provides a useful basis for consideration of the matter.
[1] Exhibit 2.
[2] Exhibit 7.
On 15 January 2007, as a consequence of the direction given by Fryberg J, the parties had participated in a conference in accordance with Uniform Civil Procedure Rules 1999 (Qld) (UCPR) 553 but the matter was not resolved.
The effect of the consent order of 11 May 2006 is that the plaintiff has succeeded in its case of nuisance and the defendants are restrained from causing or permitting the roots to encroach on the plaintiff’s property so as to cause a nuisance.
If the damages claim is to be pursued there are clearly issues about whether the damage complained of by the plaintiff was a consequence of the incursion of the tree or of unrelated events for which the defendants are not responsible.
UCPR 682 provides that the court make an order for costs in relation to a particular question or part of a proceeding. UCPR 689 provides that the costs of a proceeding are at the discretion of the court but follow the event unless the court considers another order is more appropriate. In my view it is unnecessary to apply a gloss to the plain words of the rule such as requiring unusual or exceptional circumstances to be shown.
The plaintiff was successful in the event dealt with by the order of 4 June 2007 and the defendants have the onus of establishing that an order other than costs following the event is more appropriate.
Once it was established that the roots of the tree were encroaching on the plaintiff’s land and, that was not an issue, the plaintiff had a strong prima facie case of nuisance: Malliate v Sharpe.[3] That is reflected in the consent order.
[3] [2001] NSWSC 1057.
As I understand it, it is submitted on the defendant’s behalf that another order is appropriate having regard to the fact that the plaintiff’s insurer initially had the conduct of the proceedings and the plaintiff’s unreasonable conduct.
The defendants were bound by the insurer’s conduct, it has not been demonstrated it was inappropriate and if it was, that would be a matter between the defendants and the insurer.
As to the plaintiff’s conduct, a fair view of the extensive exchange of correspondence is that the plaintiff contended that the tree had to be removed to effectively deal with the nuisance. The defendants resisted that outcome. On 10 November 2006, for example, the defendants’ attitude was there was little point in a mediation as neither party would resile from the position stated above.[4]
[4] Exhibit “JRL29”, affidavit of Johanna Richele Lucas sworn 5 December 2006, court file document 14.
The evidence shows that it was fairly open to the plaintiff to consider that nothing less than the removal of the tree would deal with the nuisance. As I have said earlier it remains an open question as to whether a root barrier will effectively deal with the nuisance or whether the tree has to be removed. The damages issue is also still open.
There is some evidence supporting the view that the problem could be dealt with by putting a barrier in place. The defendants proposed a root barrier on 5 April 2007 but had not taken advantage of the opportunity to put forward evidence supporting that outcome earlier.[5]
[5] Exhibit “RJOH 17”, affidavit of Russell James Ogilvie Hall sworn 16 April 2007, court file document 22.
The consent order of 4 June 2007 resolved the issues the subject of the order of 18 April 2007 in the plaintiff’s favour. It has not been shown that the plaintiff was other than reasonable in pursuing that outcome or that there is any other reason for costs not following the event.
I therefore order that the defendants pay the plaintiff’s costs of the determination of issues pursuant to the order of 18 April 2007 to be assessed on a standard basis.
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