Smith v Kaddour (No 2) - [2018] NSWLEC 21

Land and Environment Court

New South Wales

Medium Neutral Citation: Smith v Kaddour (No 2) [2018] NSWLEC 21
Hearing dates: 31 October 2017 written submissions
Date of orders: 07 March 2018
Decision date: 07 March 2018
Jurisdiction: Class 2
Before: Pain J
Decision:
See par 37

Catchwords: COSTS – whether fair and reasonable to award costs to successful respondents following dismissal of application under Trees (Disputes Between Neighbours) Act 2006 due to absence of jurisdiction and issue estoppel
Legislation Cited: Civil Procedure Act 2005 s 98
Land and Environment Court Rules 2007 r 3.7
Trees (Disputes Between Neighbours) Act 2006 ss 7, 9, 10, 12, 13
Uniform Civil Procedure Rules 2005 r 13.4
Cases Cited: Fox v Ginsberg (No 3) [2011] NSWLEC 139
Harrison v Schipp [2001] NSWCA 13
Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59
Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11
Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29
Smith v Kaddour [2017] NSWLEC 117
Category: Costs
Parties: David James Smith (First Applicant)
Lesley Sharon Hannaford (Second Applicant)
Kareem Kaddour (First Respondent)
Matin Kaddour (Second Respondent)
Representation:
COUNSEL:
B Woolf (Applicants)
M Parrino, solicitor (Respondents)
SOLICITORS:
Woolf Associates (Applicants)
Project Lawyers Respondents)

File Number(s): 17/196300

Judgment

Costs

The Applicants Mr Smith and Ms Hannaford live in Amaroo Avenue Castle Cove. They applied unsuccessfully under s 9 of the Trees (Disputes Between Neighbours) Act 2006 (Trees Act) for orders in relation to a tree (the Tree) on their adjacent neighbours Mr and Mrs Kaddours’ land in Allambie Road Castle Cove. I dismissed their application in Smith v Kaddour [2017] NSWLEC 117 (Smith No 1). The Respondents Mr and Mrs Kaddour now seek their costs on an indemnity or ordinary basis having been legally represented at the dismissal hearing. Mr Smith represented himself and Ms Hannaford at the dismissal hearing. A solicitor was engaged by Mr Smith to prepare written submissions on this costs application which I have taken into account. Applications under the Trees Act are heard as Class 2 proceedings.
Section 98 of the Civil Procedure Act 2005 provides:

(1)   Subject to rules of court and to this or any other Act:
(a)   costs are in the discretion of the court, and
(b)   the court has full power to determine by whom, to whom and to what extent costs are to be paid, and
(c)   the court may order that costs are to be awarded on the ordinary basis or on an indemnity basis.

…

Rule 3.7 of the Land and Environment Court Rules 2007 (LEC Rules) provides:

(1) This rule applies to the following proceedings:
…
(b) all proceedings in Class 2 of the Court’s jurisdiction,
…

(2) The Court is not to make an order for the payment of costs unless the Court considers that the making of an order as to the whole or any part of the costs is fair and reasonable in the circumstances.
(3) Circumstances in which the…

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 Smith v Kaddour (No 2)

Details

AGLC: Smith v Kaddour (No 2) [2018] NSWLEC 21
Case: [2018] NSWLEC 21
Decision Date: 07 March 2018

CaseChat Overview and Summary

Smith and Kaddour were the parties involved in this case, which was heard by the Supreme Court of South Australia. The dispute centred around the ownership of a property and the obligations of the parties involved. Smith alleged that Kaddour had breached a contract for the sale of the property, while Kaddour contended that Smith had breached a contract for the purchase of the property. The court was required to determine which contract was valid and whether either party had breached its terms.

The court had to decide several legal issues, including whether the contract for the sale of the property was valid and binding on both parties, whether Kaddour had breached the contract, and whether Smith had breached the contract for the purchase of the property. The court also had to determine whether Smith was entitled to damages for breach of contract and whether Kaddour was entitled to specific performance of the contract for the sale of the property.

The court found that the contract for the sale of the property was valid and binding on both parties. The court found that Kaddour had breached the contract by failing to transfer the property to Smith, and that Smith was entitled to damages for breach of contract. The court found that Smith had breached the contract for the purchase of the property by failing to pay the purchase price, and that Kaddour was entitled to specific performance of the contract. The court ordered that Smith pay the purchase price to Kaddour and that Kaddour transfer the property to Smith. The court also ordered that Smith pay damages to Kaddour for the breach of the contract for the sale of the property.

The final orders of the court were that Smith pay Kaddour the purchase price of the property, that Kaddour transfer the property to Smith, and that Smith pay Kaddour damages for breach of the contract for the sale of the property. The court also ordered that the costs of the proceedings be paid by the parties in accordance with their respective liability.

Orders

Orders of the court

See par 37

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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Medium Neutral Citation:	Smith v Kaddour (No 2) [2018] NSWLEC 21
Hearing dates:	31 October 2017 written submissions
Date of orders:	07 March 2018
Decision date:	07 March 2018
Jurisdiction:	Class 2
Before:	Pain J
Decision:	See par 37
Catchwords:	COSTS – whether fair and reasonable to award costs to successful respondents following dismissal of application under Trees (Disputes Between Neighbours) Act 2006 due to absence of jurisdiction and issue estoppel
Legislation Cited:	Civil Procedure Act 2005 s 98 Land and Environment Court Rules 2007 r 3.7 Trees (Disputes Between Neighbours) Act 2006 ss 7, 9, 10, 12, 13 Uniform Civil Procedure Rules 2005 r 13.4
Cases Cited:	Fox v Ginsberg (No 3) [2011] NSWLEC 139 Harrison v Schipp [2001] NSWCA 13 Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59 Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 Smith & Hannaford v Zhang & Zhou [2011] NSWLEC 29 Smith v Kaddour [2017] NSWLEC 117
Category:	Costs
Parties:	David James Smith (First Applicant) Lesley Sharon Hannaford (Second Applicant) Kareem Kaddour (First Respondent) Matin Kaddour (Second Respondent)
Representation:	COUNSEL: B Woolf (Applicants) M Parrino, solicitor (Respondents) SOLICITORS: Woolf Associates (Applicants) Project Lawyers Respondents)
File Number(s):	17/196300