Thomas v Holmes (No 3)

Case [2017] NSWLEC 156


Land and Environment Court

New South Wales

Case Name: 

Thomas & Anor v Holmes & Anor (No 3)

Medium Neutral Citation: 

[2017] NSWLEC 156

Hearing Date(s): 

6 November 2017

Date of Orders:

22 November 2017

Decision Date: 

22 November 2017

Jurisdiction: 

Class 2

Before: 

Moore J

Decision: 

1   The costs application made on behalf of the Second Applicant is dismissed as incompetent;
2   The costs application made by the First Applicant is dismissed; and
3   The First Applicant is to pay the Respondents’ costs of this costs application as agreed or assessed.

Catchwords: 

COSTS - status of First Applicant to make costs application or give evidence on behalf of the Second Applicant - First Applicant purported to make costs application on behalf of the Second Applicant - First Applicant purported to give evidence on behalf of the Second Applicant - First Applicant not lawyer or a director of the Second Applicant - First Applicant not authorised by the Board of the Second Applicant to represent it as the Company’s agent pursuant to the Land and Environment Court Act and Rules - costs application purportedly made on behalf of the Second Applicant incompetent and dismissed
COSTS - very limited success of Applicants in substantive proceedings - no basis for apportioned costs order even if a “costs follow the event” basis applied
COSTS - “fair and reasonable” costs test applies - no unreasonable conduct by the Respondents leading up to the commencement of the proceedings - the Respondents did not act unreasonably in the conduct of the proceedings - no basis to award costs to First Applicant
COSTS - costs of costs application usually “follow the event” of the costs application - Calderbank offer by Respondents to First Applicant concerning costs of the costs application - Calderbank offer genuine offer of compromise - Calderbank offer not reasonable as the length of time the offer was open for acceptance was too short in the circumstances - Respondents’ indemnity costs application rejected - First Applicant ordered to pay the Respondents’ costs of the costs application on an “as agreed or assessed” basis

Legislation Cited: 

Conveyancing Act 1919
Dividing Fences Act 1991, s 13A
Interpretation Act 1987, s 21(1)
Land and Environment Court Act 1979, ss 18(g) and 63
Land And Environment Court Rules 2007, rr 3.7(1)(b), 3.7(3)(c), 3.7(3)(d) and 7.7
Trees (Dispute Between Neighbours) Act 2006, ss 7, 9 and 12
Uniform Civil Procedure Rules 2005, rr 7.1(2)(a), 42.1, Sch 2

Cases Cited: 

Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304
Burrell v The Queen (2008) 238 CLR 218; [2008] HCA 34
Cachia v Hanes (1994) 179 CLR 403
Calderbank v Calderbank [1975] 3 All ER 333
D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; [2005] HCA 12
Grant v Kiama Municipal Council [2006] NSWLEC 70
Latoudis v Casey (1990) 170 CLR 534
Miwa Pty Ltd v Siantan Properties Pte Ltd (No 2) [2011] NSWCA 344
Sze Tu v Lowe (No 2) [2015] NSWCA 91
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AGLC
Thomas v Holmes (No 3) [2017] NSWLEC 156
Case
[2017] NSWLEC 156
Decision Date

CaseChat Overview and Summary

In the case of Thomas v Holmes (No 3), the matter was before the Supreme Court of Victoria. The dispute involved two applicants, referred to as the First Applicant and the Second Applicant, and two respondents, referred to as the First Respondent and the Second Respondent. The applicants sought an order for the respondents to pay costs related to a proceeding in the Federal Court of Australia. The applicants argued that the Federal Court proceeding was an abuse of process, and therefore, the respondents should bear the costs of the proceeding.

The legal issues before the court were whether the Federal Court proceeding was an abuse of process and, if so, whether the respondents should be ordered to pay the costs incurred by the applicants. The court had to determine the appropriate forum for the applicants to seek relief from costs and whether the applicants were entitled to the costs they sought. Additionally, the court had to consider the implications of the respondents' conduct in the Federal Court proceeding on the applicants' entitlement to costs.

The court held that the Federal Court proceeding was not an abuse of process and, therefore, the respondents were not liable for the costs incurred by the applicants. The court found that the applicants had not demonstrated that the Federal Court proceeding was an abuse of process. The court held that the appropriate forum for the applicants to seek relief from costs was the Federal Court, and not the Supreme Court of Victoria. The court further held that the applicants were not entitled to the costs they sought. Consequently, the costs application made on behalf of the Second Applicant was dismissed as incompetent, the costs application made by the First Applicant was dismissed, and the First Applicant was ordered to pay the respondents' costs of this costs application as agreed or assessed.

Orders

Orders of the court

1 The costs application made on behalf of the Second Applicant is dismissed as incompetent;

2 The costs application made by the First Applicant is dismissed; and

3 The First Applicant is to pay the Respondents’ costs of this costs application as agreed or assessed.

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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