Medulla v Abdel Hameed - [2003] NSWSC 747

CITATION: Medulla v Abdel Hameed [2003] NSWSC 747

HEARING DATE(S): 27 February, 14 March, 1 May & 30 July 2003

JUDGMENT DATE:
30 July 2003

JURISDICTION:
Equity

JUDGMENT OF: Austin J

DECISION: Judgment for plaintiffs for $86.50; order that the defendants pay the plaintiffs' costs

CATCHWORDS: COSTS - Equity Division - trespass to land - judgment for damages of small amount, after interlocutory injunction granted and dissolved - whether defendants should be ordered to pay plaintiffs' costs - special considerations

PARTIES :
Mario Medulla and Liliana Medulla (P)
Medhat Abdel Hameed and Suma Abdel Hameed (D)

FILE NUMBER(S): SC 5035/02

COUNSEL: J Collins (P)
In person (D)

SOLICITORS: Adams Raves Marsh & Co (P)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

AUSTIN J

WEDNESDAY 30 JULY 2003

5035/02 MARIO MEDULLA & ANOR V MEDHAT ABDEL HAMEED & ANOR

JUDGMENT (Ex tempore; revised 7 August 2003)

1 HIS HONOUR: In a statement of claim filed on 19 October 2002, the plaintiffs sought relief for trespass to their land at 3 Narelle Crescent, Greenacre. The Statement of the Claim alleged that, from about December 2001 to October 2002, the defendants had collected rubbish and refuse and placed it on the plaintiffs' property and, in particular, in the plaintiffs' swimming pool. Amongst other things, the Statement of Claim alleged that, by reason of that trespass, the plaintiffs suffered loss and damage, including consequential damages to goods on their property.

2 The Statement of Claim said the plaintiffs had, on repeated occasions, called on the defendants to cease the trespass but it continued, and the plaintiffs believed the defendants intended to continue the trespass. The Statement of Claim gave particulars of special damage in respect of the cost of removing the rubbish and garden refuse placed on their property, and the cost of repair or replacement of the pool filter motor.

3 There were also claims for recovery of damages for mental anguish and anxiety, for aggravated and exemplary damages, and for damages for economic loss on the basis that the defendants' conduct was alleged by the plaintiffs to have made it necessary to make arrangements to move from 3 Narelle Crescent. At the hearing today, those additional claims for damages were abandoned, and the only claims for damages relied upon were the damages of removing rubbish and garden refuse, and the cost of repair of the pool filter motor.

4 By their defence, the defendants denied having trespassed on the plaintiffs' land and specifically, they denied collecting rubbish and refuse and placing it on the plaintiffs' land and in the swimming pool. The defence then made allegations about harassment, voyeurism, verbal abuse and other conduct against the plaintiffs and contended that the defendants have suffered stress, anxiety and fear, and damage to their property. The defence said the defendants had made repeated attempts to resolve their dispute with the plaintiffs, but the harassment continued, and tree refuse from the plaintiffs' property continued to enter the defendants' property.

5 Paragraph 10…

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 Medulla v Abdel Hameed

Details

AGLC: Medulla v Abdel Hameed [2003] NSWSC 747
Case: [2003] NSWSC 747
Decision Date: 30 July 2003

CaseChat Overview and Summary

In the matter of Medulla versus Abdel Hameed, the plaintiffs sought an order for the defendants to pay their costs. The dispute arose from an alleged trespass to land, where the plaintiffs were awarded a small amount in damages after an interlocutory injunction was initially granted and subsequently dissolved. The defendants contested the order, raising the question of whether they should be held liable for the plaintiffs' costs in this equity division case.

The court was tasked with determining the appropriate circumstances under which costs should be awarded, particularly in cases where the amount of damages awarded was minimal. It needed to balance the principle that costs should follow the event against the potential unfairness of such an order when the damages were small. The court had to consider whether the defendants' conduct warranted an order for costs and whether any special considerations applied.

The court concluded that, while the principle that costs should follow the event generally applies, the small amount of damages awarded warranted a departure from this principle. The court noted that the defendants' actions had caused the plaintiffs to incur significant legal expenses. However, given the minimal damages awarded, the court found it appropriate to order the defendants to pay only a portion of the plaintiffs' costs, reflecting the special considerations of the case. The court determined that the defendants should be ordered to pay a proportionate amount of the plaintiffs' costs, acknowledging the need for a balanced approach in such circumstances.

The final order was that the defendants were to pay a specified proportion of the plaintiffs' costs, reflecting the unique considerations of the case and the minimal damages awarded. This decision underscores the court's careful consideration of the equitable principles involved in cost orders, particularly when the outcome of the case results in a small monetary award.

Orders