Sood v Borthwick - [2022] NSWSC 901

Supreme Court

New South Wales

Medium Neutral Citation: Sood v Borthwick [2022] NSWSC 901
Hearing dates: Decision on papers
Date of orders: 6 July 2022
Decision date: 06 July 2022
Jurisdiction: Equity
Before: Slattery J
Decision:
Defendant ordered to pay 35% of the plaintiff’s costs of the proceedings. Orders made for certain costs of a court appointed expert to be shared in the proportions 35:65 as between the plaintiff and the defendant. Other incidental orders made.

Catchwords:
COSTS – appropriate costs order after proceedings settled – plaintiff brings proceedings for trespass to a property arising out of excavation of a trench on a boundary of her property with the defendant’s neighbouring property – hearing proceeds in the duty list and the parties agree upon a grant of final relief apart from damages – damages issues – parties cannot agree upon appropriate order for costs – whether an order for costs should be made against one or other party and if so, what order for costs should be made.

Legislation Cited:
Uniform Civil Procedure Rules 2005, rr 42.19 and 42.20
Conveyancing Act 1919, s 177

Cases Cited:
Australian Securities Commission v Aust-Home Investments Limited (1993) 44 FCR 194
Bitannia Pty Ltd v Parkline Constructions Pty Ltd [2009] NSWCA 32
Edwards Madigan Torzillo Briggs Pty Ltd v Stack [2003] NSWCA 302
McNamara v Bao San [2010] NSWSC 809
ONE.TEL Ltd v Deputy Commissioner of Taxation [2000] FCA 270; (2000) 101 FCR 548
Oxford Funding Pty Ltd v Oxford Asia Pacific Investments Pty Ltd (No. 2) [2006] FCA 1542
Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622

Category: Costs
Parties: Plaintiff: Shaloo Sood
Defendant: Krishnan Borthwick
Representation:
Counsel:
Plaintiff: J. Horowitz
Defendant: M. Gunning
Solicitors:
Plaintiff: Jeffrey Collins, Crisp Law
Defendant: David Sattout, Sattouts Legal Pty Ltd

File Number(s): 2021/00304466
Publication restriction: No

Judgment

The plaintiff, Shaloo Sood, and the defendant, Krishnan Borthwick, are next-door neighbours in the Sydney suburb of Glebe. The plaintiff occupies the house numbered 20 in their street and the defendant occupies number 22. Both houses are freestanding double storey late 19^th century homes with a narrow pedestrian walkway straddling the boundary between them.
In October last year the defendant authorised the commencement of excavation works under the pathway between number 20 and number 22. Unfortunately, the excavation work trespassed over the boundary onto the plaintiff’s property, number 20, during the last week of October 2021, when Sydney was buffeted by intermittent heavy rainfall.
Ms Sood became concerned about the trespass and the possibility that the trench may fill with water and destabilise the foundations of number 20. She commenced these proceedings by way of Summons on 26 October 2021 seeking a permanent injunction to restore the soil to the trench, together with damages.
From the time the matter first came into the Duty List on 26 October 2021 the Court dealt with it on an urgent basis. After evidence was filed on subsequent days, the Court indicated…

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 Sood v Borthwick

Details

AGLC: Sood v Borthwick [2022] NSWSC 901
Case: [2022] NSWSC 901
Decision Date: 06 July 2022

CaseChat Overview and Summary

Sood v Borthwick involved a trespass claim brought by the plaintiff, Sood, against the defendant, Borthwick, stemming from the excavation of a trench on the boundary of their properties. The case was heard in the relevant court where the dispute centred around the issue of costs following the settlement of the proceedings. Although the parties reached an agreement on final relief, excluding damages, they could not agree on the appropriate order for costs.

The court was required to determine whether an order for costs should be made against one of the parties and, if so, what the appropriate order for costs should be. The primary focus was on the appropriateness of the costs order in light of the settlement and the inability of the parties to agree on the allocation of costs. The court had to consider the conduct of the parties throughout the proceedings, the stage at which the settlement was reached, and the reasonableness of the costs incurred by each party.

In delivering the judgment, the court carefully examined the evidence and submissions from both parties. The court determined that an order for costs should indeed be made. It considered the settlement agreement, the conduct of the parties, and the efforts made towards resolving the cost dispute. The court concluded that the appropriate order for costs should reflect the overall settlement and the efforts each party made to reach an agreement. The court ordered that certain costs should be borne by one party, considering the circumstances of the case and the principles governing costs in settled proceedings.

The final orders included a detailed allocation of costs, reflecting the court's determination that an order for costs was appropriate given the circumstances of the case and the conduct of the parties. The specific amounts and the party responsible for the costs were clearly outlined, providing clarity and finality to the dispute.

Orders