McIntosh v Morris

Case [2021] NSWCA 225


Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: McIntosh v Morris [2021] NSWCA 225
Hearing dates: 24 February 2021; written submissions 31 March and 8 April 2021
Date of orders: 20 September 2021
Decision date: 20 September 2021
Before: White JA at [1];
Brereton JA at [93];
Emmett AJA at [109]
Decision:

(1) Order that para 2 of the applicants’ notice of motion filed on 8 February 2021 be dismissed with costs.

(2) Grant the applicants leave to appeal.

(3) Allow the appeal.

(4) Set aside the orders for costs made by the District Court on 14 August 2020.

(5) In lieu thereof order that there be no order as to the costs of the proceedings in the District Court, including as to the applicants’ amended notice of motion in the District Court dated 21 July 2020, to the intent that the parties bear their own costs of those proceedings.

(6) No order as to the costs of the appeal to the intent that the parties bear their own costs.

Catchwords:

COSTS — Party/Party — Exceptions to general rule that costs follow the event — Offers of compromise/Calderbank offers — General rule that costs follow the event — Proceedings discontinued or dismissed — Whether parties acted reasonably

TORTS — Trespass to land — Continuing trespass — Where subterranean encroachment upon plaintiffs’ land from defendants’ land — Where defendants were not in possession when the encroachment was constructed — Whether defendants liable for trespass committed by predecessor in title — Whether encroaching material affixed to defendants’ land

Legislation Cited:

District Court Act 1973 (NSW), s 46

Uniform Civil Procedure Rules 2005 (NSW), r 42.20

Cases Cited:

Billiet v The Commercial Bank of Australasia Ltd [1906] SALR 193

Bocado SA v Star Energy UK Onshore Ltd [2011] 1 AC 380; [2010] UKSC 35

Bulli Coal Mining Co v Osborne [1899] AC 351

Burton v Winters [1993] 1 WLR 1077; 3 All ER 847

Clegg v Dearden (1848) 12 QB 576; 116 ER 986

Di Napoli v New Beach Apartments Pty Ltd (2004) 11 BPR 21,493; Aust Torts Reports 81-728; [2004] NSWSC 52

Hudson v Nicholson (1839) 5 M&W 437; 151 ER 185

Johnson v Barry Park Investments Ltd (2019) 20 NZCPR 562; [2019] NZHC 597

Konskier v B Goodman Ltd [1928] 1 KB 421

Lakes Edge Developments Ltd v Kawarau Village Holdings Ltd [2017] 3 NZLR 336

Lord v McMahon [2015] NSWSC 1619

Minister for Immigration and Ethnic Affairs ex parte Lai Qin (1997) 186 CLR 622; [1997] HCA 6

One.Tel Ltd v Commissioner of Taxation (2000) 101 FCR 548; [2000] FCA 270

Proprietors of SP 20297 v G&S Developments Pty Ltd [2008] NSWSC 257

Ralph Lauren 57 Pty Ltd v Byron Shire Council [2014] NSWCA 107

Stoneman v Lyons (1975) 133 CLR 550; [1975] HCA 59

Texts Cited:

American Law Institute, Restatement of the Law Second, Torts (1965)

Category:Principal judgment
Parties: Jill McIntosh (First applicant)
Robert Patane (Second applicant)
Graeme Morris…

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AGLC
McIntosh v Morris [2021] NSWCA 225
Case
[2021] NSWCA 225
Decision Date

CaseChat Overview and Summary

The applicants, McIntosh and Morris, sought leave to appeal from a decision of the District Court concerning a claim for trespass to land. The dispute involved a subterranean encroachment from the defendants’ land onto the plaintiffs’ land. The plaintiffs alleged a continuing trespass due to the presence of encroaching material affixed to the defendants’ land, even though the defendants were not in possession when the encroachment was constructed.

The primary legal issues before the Court of Appeal were whether the defendants could be held liable for a trespass committed by their predecessor in title, and whether the encroaching material constituted a trespassory encroachment affixed to the defendants’ land. Additionally, the court considered the appropriate orders for costs, particularly in light of the general rule that costs follow the event and the potential application of exceptions such as Calderbank offers or the reasonableness of the parties' conduct.

The Court of Appeal reasoned that a continuing trespass occurs when an object is placed on another's land without consent, and that liability for such a trespass can extend to a successor in title who has the power to remove the encroaching object. The court found that the encroaching material was indeed affixed to the defendants' land and constituted a continuing trespass. Regarding costs, the court determined that the general rule should not apply and that each party should bear their own costs of the District Court proceedings and the appeal.

Consequently, the Court of Appeal granted leave to appeal, allowed the appeal, and set aside the District Court's cost orders. The court ordered that there be no order as to the costs of the District Court proceedings, meaning the parties were to bear their own costs. Similarly, no order was made as to the costs of the appeal, with the parties to bear their own costs.

Orders

Orders of the court

(1) Order that para 2 of the applicants’ notice of motion filed on 8 February 2021 be dismissed with costs.

(2) Grant the applicants leave to appeal.

(3) Allow the appeal.

(4) Set aside the orders for costs made by the District Court on 14 August 2020.

(5) In lieu thereof order that there be no order as to the costs of the proceedings in the District Court, including as to the applicants’ amended notice of motion in the District Court dated 21 July 2020, to the intent that the parties bear their own costs of those proceedings.

(6) No order as to the costs of the appeal to the intent that the parties bear their own costs.

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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