O'Brien v Pittwater Council (No 2)

[2016] NSWDC 448

District Court

New South Wales

Medium Neutral Citation:	O’Brien v Pittwater Council (No 2) [2016] NSWDC 448
Hearing dates:	8 April 2016
Date of orders:	08 April 2016
Decision date:	08 April 2016
Jurisdiction:	Civil
Before:	P Taylor SC DCJ
Decision:	(1)   The defendant within 6 months of 8 April 2016 shall install a mesh grate on the pipe opening in the upstream pit, or on the pit opening, having square apertures with dimensions not greater than 17mm by 17mm so as to preclude the transport through the pipe of plastic bottles, bags or other refuse greater than 25mm in diameter. Any modifications to the pit cover are not to increase the water flow capacity of the pit opening. (2)   The costs of the plaintiff not to include the costs relating to the damages question and only half of the combined costs (on a party/party basis) of her hydrology experts. (3)   The defendant shall pay 65% of the plaintiff's costs, subject to order (2).
Catchwords:	COSTS – party/party – plaintiff partly successful – failed on a major issue – reduced costs awarded
Category:	Costs
Parties:	Naomi Catherine O’Brien (plaintiff) Pittwater Council (defendant)
Representation:	Counsel: Mr A Fernon (plaintiff) Mr S Glascott (defendant)   Solicitors: Yates Beaggi Lawyers (plaintiff) Mills Oakley Lawyers (defendant)
File Number(s):	2010/258653
Publication restriction:	None

Judgment

1. In this matter both parties seek an order for costs in their favour.

2. The plaintiff, Naomi O’Brien, has succeeded in establishing the existence of a nuisance and obtained orders for relief. The nuisance established is that for certain rainfall events Pittwater Council had caused an increased water flow onto Mrs O’Brien’s property. Further, Mrs O’Brien has succeeded on some other issues, such as statutory defences and whether there was a natural water course.

3. However, Mrs O’Brien was unsuccessful in obtaining the primary relief she sought, an injunction to prevent water flowing onto her property from the upper catchment above her property.

4. The major issue in the trial concerned the area of the natural catchment. The findings on that matter produced something of a mixed result. And as noted above, Mrs O’Brien did not obtain the primary relief sought but she did obtain substantial relief.

5. Mrs O’Brien retained two experts in the same field. In my view, Mrs O’Brien's costs should only include half of the combined costs of her experts. As she was unsuccessful in her claim for damages, no costs in that regard should be recoverable. Subject to those matters, she should receive an award of 65% of her costs.

6. The orders will be that:

1. The defendant within 6 months of 8 April 2016 shall install a mesh grate on the pipe opening in the upstream pit, or on the pit opening, having square apertures with dimensions not greater than 17mm by 17mm so as to preclude the transport through the pipe of plastic bottles, bags or other refuse greater than 25mm in diameter. Any modifications to the pit cover are not to increase the water flow capacity of the pit opening.

2. The costs of the plaintiff not to include the costs relating to the damages question and only half of the combined costs (on a party/party basis) of her hydrology experts.

3. The defendant shall pay 65% of the plaintiff's costs, subject to order (2).

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Decision last updated: 11 June 2019