Transport for NSW v Boensch (No 3)

[2024] NSWSC 112

Supreme Court

New South Wales

Medium Neutral Citation:

Transport for NSW v Boensch (No 3) [2024] NSWSC 112

Hearing dates:

29 November 2023, 13 December 2023

Date of orders:

15 February 2024

Decision date:

15 February 2024

Jurisdiction:

Equity - Real Property List

Before:

McGrath J

Decision:

See [59]

Catchwords:

COSTS — timing — costs payable forthwith — where the plaintiff relies on Morningstar factors — where the first defendant submits that a costs order at this stage in the proceedings would stultify his defence and cross-claim and function to punish him — HELD — on balance the default position under Uniform Civil Procedure Rules 2005 (NSW) r 42.7 applies

COSTS ­— party/party — general rule that costs follow the event — application of the rule and discretion under Civil Procedure Act 2005 (NSW) s 98 — where the plaintiff submits that costs should be payable as a gross sum — where a contested assessment of costs would expose the plaintiff to irrecoverable expense, delay and aggravation — HELD — gross sum costs awarded

JUDGMENTS AND ORDERS — amending, varying and setting aside — where the cross-claimant submits that the principal judgment failed to account for the filing of a Notice of Intention to Appeal in respect of related proceedings — where no Notice to Appeal has been lodged and the cross-claimant is out of time to do so — HELD — orders varying principal judgment refused

Legislation Cited:

Civil Procedure Act 2005 (NSW)

Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

Anchorage Capital Master Offshore Pty Ltd v Sparkes (No 2) [2019] NSWSC 550

Boensch v Bingham [2023] NSWSC 1152

Boensch v Transport for NSW and Registrar General of New South Wales [2023] NSWLEC 82

Bowman v Datalec Services Pty Ltd & Ichor Constructions Pty Ltd [2021] NSWSC 1360

Doppstadt Australia Pty Ltd v Lovick & Son Developments Pty Ltd (No 2) [2014] NSWCA 219

Fiduciary Ltd v Morningstar Research Pty Ltd (2002) 55 NSWLR 1; [2002] NSWSC 432

Hamod v New South Wales [2011] NSWCA 375

In the matter of Elsmore Resources [2014] NSWSC 1390

Northern Territory v Sangare (2019) 265 CLR 164

Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11

Transport for NSW v Boensch (No 2) [2023] NSWSC 1354

Category:

Costs

Parties:

Transport for NSW (ACN 18 804 239 602) (Plaintiff)
Franz Boensch (First Defendant)
Go Green Systems Pty Ltd (ACN 115 997 192) (Second Defendant)

Representation:

Counsel:
G Keesing (Plaintiff)
F Boensch (Self-Represented) (Defendant)

Solicitors:
Holding Redlich (Plaintiff)

File Number(s):

2021/00186631

Publication restriction:

Nil

JUDGMENT

INTRODUCTION

1. This judgment determines the issue of the costs following my earlier judgment in Transport for NSW v Boensch (No 2) [2023] NSWSC 1354 (Principal Judgment). The Principal Judgment ruled on two applications made by the plaintiff/cross-defendant, Transport for NSW (TfNSW), by notices of motion filed 26 May 2023 and 14 July 2023, against the first defendant/cross-claimant, Franz Boensch, respectively seeking orders:

1. setting aside the notice to produce dated 4 May 2023 issued by Mr Boensch to TfNSW (Notice to Produce Motion); and

2. that the cross-claim brought by Mr Boensch be summarily dismissed, permanently stayed, or struck out (Dismissal Motion).

2. This judgment also deals with the effect (if any) of Mr Boensch having filed a Notice of Intention to Appeal, and then a Notice of Appeal of, the decision in the LEC Proceedings: Boensch v Transport for NSW and Registrar General of New South Wales [2023] NSWLEC 82, Robson J.

3. This judgment assumes familiarity with the Principal Judgment. Shorthand expressions I used in the Principal Judgment are also used in this judgment.

4. In summary, in the Principal Judgment I determined that:

1. significant parts of the cross-claim (containing claims in the nature of negligence) be struck out pursuant to r 14.28(1)(a) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), with leave to replead them;

2. with the exception of paragraph 10 of the relief claimed, the balance of the cross-claim (containing claims which ignore the 1996 boundary determination and the 2022 boundary refusal) be summarily dismissed pursuant to r 13.4(1)(b) and (c) of the UCPR; and

3. nearly all paragraphs of the notice to produce, save for paragraphs 3 and 4, be set aside.

EVIDENCE

5. TfNSW relied on the following evidence:

1. affidavit of Christine Helen Jones affirmed 21 November 2023;

2. affidavit of Christine Helen Jones affirmed 28 November 2023;

3. affidavit of Christine Helen Jones affirmed 11 December 2023;

4. company search results for the second defendant, Go Green Systems Pty Ltd; and

5. print-out for the internet site with address “big-toys.net”.

6. Mr Boensch relied on the affidavit of Franz Boensch filed 2 December 2023.

7. At the hearing, Ms G Keesing appeared for TfNSW, instructed by Holding Redlich. Mr Boensch was self-represented.

8. The argument about costs before me was unnecessarily long, extending across almost an entire day’s worth of hearing over two hearing dates on 29 November 2023 and 13 December 2023. This was primarily because Mr Boensch relied on an argument regarding the likely stultification of his claim should he be ordered to pay costs forthwith on a gross sum basis as contended for by TfNSW (issues that are dealt with below). As a result, I adjourned the first day of hearing to enable Mr Boensch to put on affidavit evidence of his financial position. I did so because I was concerned he may consider that he had not had the opportunity to put all of the material before the court that he wished on that topic.

9. Once Mr Boensch had read his affidavit at the hearing on 13 December 2023, I permitted limited cross-examination of him to occur.

LEGAL PRINCIPLES

10. Section 98 of the Civil Procedure Act 2005 (NSW) (CPA) relevantly states that:

(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.

(2)   Subject to rules of court and to this or any other Act, a party to proceedings may not recover costs from any other party otherwise than pursuant to an order of the court.

(3)   An order as to costs may be made by the court at any stage of the proceedings or after the conclusion of the proceedings.

(4)   In particular, at any time before costs are referred for assessment, the court may make an order to the effect that the party to whom the costs are to be paid is to be entitled to —

…

(c)   a specified gross sum instead of assessed costs,

…

11. The discretion to award costs in s 98 of the CPA is wide and to be given a liberal construction, but must be exercised judicially, not arbitrarily, capriciously or so as to frustrate the legislative intent: Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11, Gaudron and Gummow JJ at [21]–[22].

12. Also in Oshlack, McHugh J at [67] said (citations omitted):

The expression the “usual order as to costs” embodies the important principle that, subject to certain limited exceptions, a successful party in litigation is entitled to an award of costs in its favour. The principle is grounded in reasons of fairness and policy and operates whether the successful party is the plaintiff or the defendant. Costs are not awarded to punish an unsuccessful party. The primary purpose of an award of costs is to indemnify the successful party. If the litigation had not been brought, or defended, by the unsuccessful party the successful party would not have incurred the expense which it did. As between the parties, fairness dictates that the unsuccessful party typically bears the liability for the costs of the unsuccessful litigation.

13. In Northern Territory v Sangare (2019) 265 CLR 164, Kiefel CJ, Bell, Gageler, Keane and Nettle JJ at [24]– [25] stated (citations omitted):

24   It is well established that the power to award costs is a discretionary power, but that it is a power that must be exercised judicially, by reference only to considerations relevant to its exercise and upon facts connected with or leading up to the litigation. While the width of the discretion “cannot be narrowed by a legal rule devised by the court to control its exercise”, the formulation of principles according to which the discretion should be exercised does not “constitute a fetter upon the discretion not intended by the legislature”. Rather, the formulation of principles to guide the exercise of the discretion avoids arbitrariness and serves the need for consistency that is an essential aspect of the exercise of judicial power.

25   A guiding principle by reference to which the discretion is to be exercised — indeed, “one of the most, if not the most, important” principle — is that the successful party is generally entitled to his or her costs by way of indemnity against the expense of litigation that should not, in justice, have been visited upon that party. The application of that principle may be modified or displaced where there is conduct on the part of the successful party in relation to the conduct of the litigation that would justify a different outcome. For example, a successful defendant may be refused its costs on the ground that its conduct induced the plaintiff to believe that he or she had a good cause of action. …

14. Whether a party is rich or poor generally speaking has no relevant connection to the litigation but is relevant to the extent that it may inform the structure of the costs order: Sangare at [32].

15. The power to award costs in s 98 of the CPA is expressly subject to the rules of court.

16. Rule 42.1 of the UCPR provides that:

Subject to this Part, if the court makes any order as to costs, the court is to order that the costs follow the event unless it appears to the court that some other order should be made as to the whole or any part of the costs.

17. Rule 42.7 of the UCPR provides that:

(1)   Unless the court orders otherwise, the costs of any application or other step in any proceedings, including —

(a)   costs that are reserved, and

(b)   costs in respect of any such application or step in respect of which no order as to costs is made,

are to be paid and otherwise dealt with in the same way as the general costs of the proceedings.

(2)   Unless the court orders otherwise, costs referred to in subrule (1) do not become payable until the conclusion of the proceedings.

18. “Event” in the expression “follow the event” in r 42.1 refers to the practical result of a particular claim: Doppstadt Australia Pty Ltd v Lovick & Son Developments Pty Ltd (No 2) [2014] NSWCA 219, Ward, Emmett and Gleeson JJA at [15].

19. The effect of the costs discretion — to be exercised in s 98 of the CPA at any stage of the proceedings and read subject to the provisions in rr 42.1 and 42.7 of the UCPR — is that an order for the costs of an interlocutory application is based on the practical result of the application and costs do not become payable until the conclusion of the proceedings, unless there are discretionary factors that require some other order.

20. There are numerous discretionary factors which might give rise to an order for the costs of an interlocutory application to be payable forthwith.

21. In Fiduciary Ltd v Morningstar Research Pty Ltd (2002) 55 NSWLR 1; [2002] NSWSC 432, Barrett J at [10]–[13] said:

10   It becomes necessary now to consider the factors which have caused courts to depart from the normal rule in Part 52A rule 9(1) that costs are payable at the conclusion of the proceedings. A convenient and useful starting point is the following passage in the judgment of Priestley JA in Horrobin v Australia & New Zealand Banking Group Ltd (unreported, NSWCA, 6 June 1997):

“None of the cases is on all fours with the present one; indeed, a reading of them emphasises the need for cases to be considered by reference to their own particular facts. Nevertheless, those relied on by counsel for H and S show there is a tendency for costs orders to be made payable forthwith and without waiting for the conclusion of further proceedings when the proceedings in respect of which the costs orders have been made are regarded as sufficiently self-contained and detached or detachable from proceedings yet to be heard, whether between the same or associated parties, as to make it seem just for an actual payment to be made in the meantime.”

11   This identifies the first recognisable category of case, namely, where the application or aspect in respect of which the particular costs order is made before conclusion of the proceedings represents the determination of a separately identifiable matter or may be viewed as the completion of a discrete aspect. Examples of this may be found in Charlie Brown Pty Ltd v Green (unreported, NSWSC, McLelland CJ in Eq, 3 July 1995) and Bagley v Pinebelt Pty Ltd [2000] NSWSC 830.

12   A second factor which may incline the court to order that costs be payable forthwith is some unreasonable conduct on the part of the party against whom costs have been ordered. That was a factor taken into account by Simpson J in Gattellari v Meagher [1999] NSWSC 1279, although, in the end, her Honour did not think that the particular conduct warranted such an order.

13    A third factor is, as it was put by Giles J in Doran Constructions Pty Ltd v University of Newcastle (unreported, NSWSC, 16 December 1994), that ‘there is much to come in the proceedings’ and ‘one can see a fairly long time before the proceedings are disposed of’. In Horrobin (above), the decision of Priestley JA to order that costs be payable forthwith was influenced to some extent by the fact that the controversy between the parties would run for at least a further year. In Allstate Life Insurance Co v Australia and New Zealand Banking Group Ltd (unreported, FCA, 18 August 1995), Lindgren J said that it may be appropriate for greater use to be made of the analogous provision in the Federal Court Rules, “particularly in cases such as this one where the final determination of the proceedings is so far away”.

22. In Bowman v Datalec Services Pty Ltd & Ichor Constructions Pty Ltd [2021] NSWSC 1360, Bellew J at [79] helpfully summarised the general principles regarding the discretion under r 42.7 of the UCPR to order costs payable forthwith in the following way (footnotes omitted):

In considering whether I should exercise my discretion to ‘order otherwise’ under r 42.7(2) of the rules, I respectfully agree with the view expressed by Katzmann J (in the context of O 62 r 3 of the Federal Court Rules 2011 (Cth)) in Power Infrastructure Pty Ltd v Downer EDI Engineering Power Pty Ltd (No 2), namely that because the facts of the cases necessarily differ, hard and fast rules governing the exercise of such discretion cannot be laid down. That said, a number of general principles which inform the exercise of the discretion can be distilled from the authorities. They include the following:

(1)   the general principle is that issues of costs should be resolved when the proceedings are concluded, and the rights of the parties have been finally determined;

(2)   that general principle will usually serve the interests of justice because it will avoid multiple cost assessments and possible unfairness, and will limit the risk of interlocutory proceedings being used to exhaust the financial resources of one of the parties;

(3)   it follows that an order that costs be paid forthwith is an exception which will only be made in a case that is out of the ordinary. This is because such an order has the capacity to stultify proceedings, particularly those brought by persons with limited resources, and because such an order carries a risk of operating unfairly where, over the course of the proceedings, there may be orders made that one party should pay the costs of the other from time to time;

(4)   that said, a provision such as r. 42.7(2) of the rules clearly contemplates that there may be circumstances in which a departure from the general principle is warranted. Such a departure may be justified in a case where costs have been incurred following an interlocutory application which is incompetent or misconceived and which, on a proper analysis, should never have been brought;

(5)   a departure from the general principle may also be justified if there is an element of unreasonableness in the conduct of the unsuccessful party, and it is likely that there will be a long delay between the interlocutory proceedings and the conclusion of the principal proceedings; and

(6)   other factors which may be relevant to considering whether a departure from the general rule is justified will include whether the costs order on the interlocutory application was relevant to a discrete and separately identifiable aspect of the proceedings, and whether any costs liability is likely to be affected by the final outcome of the proceedings.

23. The issue of whether there should be a gross sum costs order under s 98(4)(c) of the CPA is also at play in these proceedings. In Hamod v New South Wales [2011] NSWCA 375, Beazley JA (with whom Giles and Whealy JJA agreed) at [816]–[818] summarised factors relevant to the making of a gross sum costs order as follows:

816 The terms of s 98(4), together with the more general considerations reflected in the Civil Procedure Act, ss 56(1), 57(1)(d) and 60, suggest the factors that merit particular consideration include: the relative responsibility of the parties for the costs incurred (for example, Harrison v Schipp); the degree of any disproportion between the issue litigated and the costs claimed; the complexity of proceedings in relation to their cost; and the capacity of the unsuccessful party to satisfy any costs liability: Ritchie’s Uniform Civil Procedure NSW at [s 98.45].

817 The exercise of the power conferred by s 98(4) is particularly appropriate where the costs have been incurred in lengthy or complex cases and it is desirable to avoid the expense, delay and aggravation likely to be involved in contested costs assessment. This may arise either from the likely length and complexity of the assessment process: Beach Petroleum NL v Johnson (No 2) at 120; Charlick Trading Pty Ltd v Australian National Railways Commission; Australasian Performing Rights Association Ltd v Marlin [1999] FCA 1006; or from the likelihood that the additional costs of formal assessment would disadvantage the successful party because of the likely inability of the unsuccessful party to discharge the costs liability in any event: Harrison v Schipp; Sony Entertainment (Aust) Ltd v Smith (2005) 215 ALR 788 at [90], [194]–[195]; Hadid v Lenfest Communications Inc [2000] FCA 628.

818   The power may also be exercised where a party’s conduct has unnecessarily contributed to the costs of the proceedings, especially where the costs incurred have been disproportionate to the result of the proceedings: Leary v Leary [1987] 1 WLR 72 ; [1987] 1 All ER 261; Sony Entertainment (Aust) Ltd v Smith; Microsoft v Jiang (2003) 58 IPR 445; [2003] FCA 101; Ritchie’s Uniform Civil Procedure NSW at [s 98.60]).

24. The basis on which the calculation of a gross sum should be made was also considered in Hamod, Beazley JA at [819]–[820] stating:

819   The assessment of any lump sum to be awarded must represent a review of the successful party’s costs by reference to the pleadings and complexity of the issues raised on the pleadings; the interlocutory processes; the preparation for final hearing and the final hearing: Smoothpool v Pickering [2001] SASC 131. In the exercise of its discretion the court is not required to undertake a detailed examination of the kind that would be appropriate to taxation or formal costs assessment: Harrison v Schipp at 743; Hadid v Lenfest Communications Inc at [35]; Auspine Ltd v Australian Newsprint Mills Ltd (1999) 93 FCR 1 at 5; [1999] FCA 673.

820   The costs ordered should be based on an informed assessment of the actual costs having regard to the information before the court (for example, by relying on costs estimates or bills): Beach Petroleum NL v Johnson (No 2); Leary v Leary; Harrison v Schipp at 743 ; Sparnon v Apand Pty Ltd (FCA, 4 March 1998, unreported). The approach taken to estimate the costs to be ordered must be logical, fair and reasonable: Beach Petroleum NL v Johnson at 164–165; Hadid v Lenfest Communications Inc at [27]; Harrison v Schipp at 743. This may involve an impressionistic discount of the costs actually incurred or estimated, in order to take into account the contingencies that would be relevant in any formal costs assessment: Leary v Leary at WLR 76 per Purchas LJ; Beach Petroleum NL v Johnson (No 2) at 123; Auspine Ltd v Australian Newsprint Mills Ltd at 164–165.

ISSUES ON COSTS

25. There were numerous issues concerning costs raised at the hearing. I have set out below the parties’ submissions in relation to each of these issues and my determination of them.

26. The principal submission of TfNSW is that it should be awarded its costs of the Notice to Produce Motion and the Dismissal Motion as a gross sum, payable forthwith, in the amount of $56,550.30.

27. The principal submission of Mr Boensch is that there should be no order of costs at this stage of the proceedings as it would stultify him in his defence and cross-claim and punish him, and that any costs order should be made at the end of the final hearing of the proceedings.

28. I reject all of the submissions made by Mr Boensch which seek to re-open the arguments about the production of documents under the notice to produce. Many of Mr Boensch’s submissions sought to re-contest the issue of the boundary determination and for that reason are misconceived.

Costs of the Dismissal Motion

29. TfNSW says that it was successful on the Dismissal Motion and the Notice to Produce Motion and it should receive an award of costs in its favour on both.

30. Mr Boensch submits that TfNSW has not been successful in summarily disposing of all of the cross-claim or in setting aside all of the notice to produce as it requested and, therefore, it cannot be considered to have been successful on its applications. He says that any costs award against him would be punishment. He submits that costs should be costs in the cause or reserved to be consistent with the decision in Boensch v Bingham [2023] NSWSC 1152 where the proceedings brought by Mr Boensch were not struck out in whole and in relation to those parts which were struck out, he was given leave to replead them.

31. He also submits that the approach by Ball J in Anchorage Capital Master Offshore Pty Ltd v Sparkes (No 2) [2019] NSWSC 550 is applicable in this case, where the costs of a pleading amendment application were ruled to be the plaintiffs’ costs of the amended claim such that if the amended claim failed at trial they would not be entitled to their costs.

32. In my view, the practical result of the Dismissal Motion was that TfNSW was successful in having the whole of the parts of the cross-claim disputing the location of the boundary summarily dismissed and having the whole of the parts of the cross-claim making claims in the nature of negligence struck out. Both of those outcomes were sought in the Dismissal Motion and contested by Mr Boensch. For those reasons, I consider that TfNSW is entitled to an order for costs in its favour on the Dismissal Motion.

33. In reaching this determination, I am compensating TfNSW for having brought an application in which it was wholly successful, not punishing Mr Boensch as he asserts.

34. I do not think the decision in Bingham to reserve costs assists Mr Boensch because in that case only parts of the claim were struck out and leave to replead given, whereas here a substantial amount of the cross-claim has been summarily dismissed and the balance was struck out with leave to replead. The success of TfNSW on the Dismissal Motion was substantial. There is no reason to reserve costs in the present case.

35. The decision in Anchorage is not relevant to the exercise of my discretion because the facts involved in it are vastly different from those that I am dealing with in this case. In Anchorage, the plaintiffs applied to amend their claim by joining additional plaintiffs and an additional defendant and pleading new causes of action arising from the joinder of those parties. The defendants resisted the amendments, but the plaintiffs were substantially successful on the amendment application. The defendants successfully argued before Ball J that the plaintiffs should not have an award of costs in their favour because they were not wholly successful, and it would not be reasonable to permit the plaintiffs to recover the costs if their amended case failed.

36. In these proceedings, TfNSW has been wholly successful in obtaining the orders that it sought in the Dismissal Motion, being to summarily dismiss or strike out the cross-claim. The event which TfNSW sought has occurred and TfNSW should be compensated for its success in obtaining that outcome.

Cost of the Notice to Produce Motion

37. In my view, the practical result of the Notice to Produce Motion was that TfNSW was successful in setting aside all but three of the 13 categories of documents which were sought. That result was the natural outcome following the determination of the Dismissal Motion. While Mr Boensch was successful in maintaining three categories of documents, they formed an insignificant part of the hearing before me. For those reasons, I consider that TfNSW is entitled to an order for costs in its favour on the Notice to Produce Motion.

Costs payable forthwith

38. TfNSW’s submissions in favour of an award of costs payable forthwith aligned with the three factors stated in Morningstar, being that:

1. the result of the outcomes of the Dismissal Motion and the Notice to Produce Motion is that there will be a new beginning of the proceedings after them;

2. TfNSW’s costs of the application were increased by the unreasonable conduct of Mr Boensch in serving voluminous material (much of which was not referred to); and

3. the likely timing of a final hearing is in the order of a year after the interlocutory hearing.

39. Mr Boensch made numerous submissions which were wide-ranging and not soundly based in any evidence before me, and which criticised the approach of TfNSW as frustrating the litigation, continuously concealing documents, and fabricating a miscarriage of justice by consciously and deliberately concealing evidence to manipulate the proceedings. None of those matters are made out on the evidence before me and I reject them.

40. Putting aside those matters, the relevant submissions made by Mr Boensch are that a costs order at this stage of the proceedings would stultify his defence and cross-claim, that TfNSW has been a substantial contributor to his current financial situation, and that a costs order would punish him. Mr Boensch also submitted that costs payable forthwith are the exception, referring to In the matter of Elsmore Resources [2014] NSWSC 1390, Black J at [5] stating (after referring to Morningstar):

In summary, an order that costs be paid forthwith is an exception, which will only be made in a case that is out of the ordinary; such an order has the capacity to stultify proceedings, particularly brought by persons with limited resources, and also has the risk of operating unfairly where, over the course of proceedings, there may be orders which are made that one or other party should pay the costs of the other from time to time. Nonetheless, the Court may order that costs be paid forthwith, at least if there is an element of unreasonableness in the conduct of the unsuccessful party, and it is likely there will be a long delay between the interlocutory proceedings and the conclusion of the principal proceeding.

41. I am satisfied that the outcome of the Dismissal Motion (but not the Notice to Produce Motion) will be to produce a new beginning of sorts in the proceedings by the narrowing of the issues to just those which concern the negligence claim. However, those issues of negligence have been present in the proceedings since the cross-claim was filed on 15 September 2021, notwithstanding Mr Boensch has been required to replead them (which he has now done by the filing of the amended statement of cross-claim on 8 December 2023). While there is the completion of the discrete aspect of the cross-claim concerning the location of the boundary, the other parts of the cross-claim continue, albeit in a new form. But there is not such a new beginning that what has gone before could be considered as separate and distinct from what will now follow.

42. I am also not satisfied that Mr Boensch behaved unreasonably in relation to the two applications. Mr Boensch is self-represented. Even though he is subject to the same rules as all other litigants, it cannot be expected that he will have the same laser focus on relevance that one might expect from those with legal qualifications, experience and skill who are acting for TfNSW. While it is true that much of the material that Mr Boensch required for inclusion in the Court Book for the hearing of the two applications was superfluous to the real issues raised by the applications, I do not think that this amounted to unreasonable conduct on his part.

43. It is quite clear to me that the final hearing of these proceedings will not be held for at least 9–12 months. The history of the proceedings to date and what is proposed for the further interlocutory steps in them would suggest that this might be a conservative estimate. The proceedings commenced on 29 June 2021. TfNSW served its lay evidence-in-chief on 5 December 2022. With repeated extensions of time, Mr Boensch served his lay evidence on 17 January 2023, 5 July 2023, 13 July 2023, and 19 September 2023. Mr Boensch has indicated that he intends to serve expert evidence from a land surveyor, a flow engineer, an aerial photo expert, and a quantity surveyor, although no application for leave to rely on such evidence has yet been made.

44. Balancing all of these factors, I do not consider that I should depart from the default position in r 42.7 of the UCPR, with the result that the costs of the Dismissal Motion and the Notice to Produce Motion should not become payable by Mr Boensch until the conclusion of the proceedings.

Gross sum costs

45. TfNSW submits that I should exercise my discretion under s 98(4)(c) of the CPA to award costs payable to it on a gross sum basis, citing the circumstances of avoiding the expense, delay and aggravation arising from assessment, including the inability of Mr Boensch to pay costs. This inability would require TfNSW to fund additional costs for the assessment which in turn would be irrecoverable. TfNSW also submits that Mr Boensch’s conduct has unnecessarily contributed to the costs in question and that Mr Boensch has greater relative responsibility than TfNSW for the costs incurred.

46. TfNSW submits that the logical, fair, and reasonable approach to an estimation of the gross sum costs should involve the broad-brush approach of applying an impressionistic discount of around 30% to the solicitors’ fees incurred, whilst allowing for disbursements (including counsel’s fees) in full. The evidence is that the solicitors’ fees are $49,443 and when discounted at 30% are $34,610, to which are added counsel’s fees of $21,000 and other disbursements of $940.30 (neither of which is to be discounted), resulting in total costs of $56,550.30.

47. Mr Boensch submits that TfNSW’s costs are excessive. He otherwise did not make any specific submissions on the subject of a gross sum order.

48. In my view, it is appropriate that a gross sum costs order should be made. On Mr Boensch’s own evidence, he has no assets of any real value (including only $73.10 in his bank account, two body-damaged 40-year-old Mercedes cars, a damaged 50-year-old Triumph motorbike and hand tools), no regular income (estimated to be about $500 per week), and a liability on a loan from ANZ Bank of about $560,000. I am satisfied that this is an appropriate case in which TfNSW should not be put to the inevitable irrecoverable expense, delay, and aggravation of a contested assessment of its costs. For those reasons I consider that TfNSW should be awarded gross sum costs instead of assessed costs.

49. I am also satisfied that the costs which have been calculated by TfNSW in the amount of $56,550.30 have been appropriately discounted by 30% for the solicitors’ fees and should, applying a broad-brush approach to the calculation of the gross sum, be awarded.

NOTICE OF INTENTION TO APPEAL

50. In the Principal Judgment I stated at [90]–[99]:

90   Moving to the second section of the cross-claim, paragraphs 12 to 19 of the relief claimed in the cross-claim under the heading ‘Further’ are all dependent on the issue of the location of the boundary between Subiaco Creek and the Rydalmere Property. They appear to derive from the content in paragraphs 1 to 5 and 22 to 41 of the pleadings and particulars in the cross-claim.

91   As outlined above, the location of the boundary is an issue that has been previously litigated and is the essential integer in the second section of claims. It was first addressed in the 1996 boundary determination, followed by the 2022 boundary refusal, with both decisions sought to be appealed in the LEC proceedings. I have had regard to the 1996 boundary determination in considering the prospects of the cross-claim, as pressed by TfNSW.

92   Relevantly, in the LEC proceedings, Robson J held that:

(1)   Mr Boensch did not have standing to appeal the 2022 boundary refusal under s 135J of the RPA: Boensch v Transport for NSW and Registrar General of New South Wales at [77]; and

(2)   the Court did not have discretion to vary the 28-day limitation period prescribed by s 135J(3) of the RPA to appeal the 1996 boundary determination: Boensch v Transport for NSW and Registrar General of New South Wales at [80]­–[90].

93   Mr Boensch has exhausted several avenues for review as to the position of the common boundary between Subiaco Creek and the Rydalmere Property. In essence, what Mr Boensch is seeking to do in the second section of the cross-claim is to overturn the already litigated and final 1996 boundary determination. The legality of the 1996 boundary determination and the 2022 boundary refusal were properly matters for the LEC proceedings. Mr Boensch did not seek to appeal the decision of Robson J in the LEC proceedings.

94 Should Mr Boensch have wished to appeal the decision in the LEC proceedings, s 48 of the Supreme Court Act 1970 (NSW) dictates that the appropriate forum is the Court of Appeal of this court. I do not understand the approach taken by Mr Boensch in the cross-claim to be one where he is endeavouring to appeal the decision in the LEC proceedings, as it was filed well in advance of the 2022 boundary refusal and the determination in the LEC proceedings. Instead, Mr Boensch is seeking to persist in claims about the boundary between Subiaco Creek and the Rydalmere Property which have now been resolved against him and from which he did not appeal.

95   Accordingly, unlike the characterisation of what was sought by GR to “impugn” guardianship orders made (see GR at [152]-[153] (Basten AJA)), there is nothing in the language of paragraphs 12 to 19 of the relief claimed in the cross-claim that would suggest that Mr Boensch seeks to avail himself of the right to appeal the decision in the LEC proceedings. Rather, the declaratory relief sought in paragraphs 12 to 19 only speaks to the incorrect location of the boundary. It is not appropriate for me to suggest any reformulation of the substance of the pleadings on this application to, in effect, craft a legal cause of action. To do so would confer positive advantage to Mr Boensch of the kind discouraged in both Wentworth and Boensch v Bingham.

96   Here, the difficulty facing Mr Boensch extends beyond mere “lay rhetoric and inefficient presentation”. Mr Boensch is effectively seeking to ignore the 1996 boundary determination, the 2022 boundary refusal and decision in the LEC proceedings. This court is not the appropriate forum to review any of these decisions. It is also not for this court to re-determine the location of the boundary as it sees fit.

97   The 1996 boundary determination has taken effect, so the boundary is “for all purposes to be taken to be in the position so shown”: s 135L of the RPA. Amongst ‘all those purposes’ are the determination of these proceedings.

98   Paragraphs 1 to 5 and 22 to 41 of the pleadings and particulars in the cross-claim concern the location of the boundary and face the same flaws identified in relation to paragraphs 12 to 19 of the relief claimed in the cross-claim. The issues with these paragraphs can be summarised as follows:

(1)   Paragraphs 1 to 5 are all precursors to challenges to the 1996 boundary determination, contesting the location of the boundary based on the MHWM from the 1952 survey;

(2)   Paragraphs 22 to 32 are under the heading “Trees – 1952 and 1973 survey” and convey information about the trees and root systems at the south-east end of the Rydalmere Property to dispute the correctness of the 1952 survey in that it failed to survey the 1952 MHWM or “Toe of the Bank”. This functions to contest the location of the boundary.

(3)   Paragraphs 32 to 41 are under the heading “Stormwater Drain” and detail the presence of a stormwater drain outlet into Subiaco Creek. Again, the stormwater drain is used to contest the location of the boundary.

99    In effect, these pleadings function both as a defence to the FASC, and a cross-claim. They are defective in both substance and form, failing to disclose a reasonable cause of action against TfNSW and being an abuse of process because they are seeking to dispute a matter which can no longer be the subject of dispute in this court.

51. In my reasoning in the Principal Judgment (particularly at [93]-[94]), I emphasised the fact that Mr Boensch did not seek to appeal the decision in the LEC proceedings and that if he wished to do so, the appropriate forum is the Court of Appeal of this court.

52. At the hearing before me which led to the Principal Judgment (on 5 September 2023), there was no evidence of any intention of Mr Boensch to appeal the decision in the LEC proceedings. Yet Mr Boensch and TfNSW (but not their counsel, Ms Keesing) were both aware at that time that on 30 August 2023 Mr Boensch had filed and served a Notice of Intention to Appeal the decision in the LEC proceedings made on 28 July 2023. That fact was not drawn to my attention.

53. By operation of r 51.9(1) of the UCPR, the period within which Mr Boensch was required to file a Notice to Appeal following his filing of the Notice of Intention to Appeal on 30 August 2023 was 3 months after 28 July 2023. This period expired on 28 October 2023.

54. Mr Boensch says that the filing of the Notice of Intention to Appeal demonstrates that an appeal is on foot, such that the evidence does not support the findings in the Principal Judgment at [90]–[97]. Mr Boensch requests that:

1. the Principal Judgment be varied pursuant to rr 36.16(3)(a) and (b) or 36.16(3B);

2. he be given leave to replead the cross-claim on the subject of the boundary dispute; and

3. TfNSW be required to provide all of the documents in the notice to produce.

55. At the time of the hearing before me on 29 November 2023 and 13 December 2023, there was no evidence that Mr Boensch had filed a Notice to Appeal, and he was well outside the time within which to do so.

56. On 15 January 2024, my Associate was provided with a copy of a Notice of Appeal of the decision in the LEC proceedings with a material date of 29 November 2023. One of the orders sought in the Notice of Appeal is that time for filing an appeal be extended.

57. In circumstances where:

1. the Notice of Appeal has been filed out of time;

2. Mr Boensch seeks an order for the extension of that time;

3. the Court of Appeal has not yet determined the application for that extension;

4. the Court of Appeal has not determined the appeal; and

5. Mr Boensch has not sought a stay of any of the orders made by me as a result of the Principal Judgment,

6. I do not consider that there is any basis on which I should vary the Principal Judgment, grant Mr Boensch leave to replead the cross-claim in the subject of boundary dispute, or require TfNSW to produce all of the documents in the notice to produce. Whether or not Mr Boensch will be permitted to replead the cross-claim or TfNSW required to produce all of the documents in the notice to produce will be matters which will only arise if Mr Boensch is successful in his appeal of the decision in the LEC proceedings.

58. As a result, I do not propose to make any of the orders sought by Mr Boensch.

CONCLUSION

59. The orders I propose to make are:

1. Order that the first defendant/cross-claimant pay the costs of the plaintiff/cross-defendants in relation to the notices of motion filed 26 May 2023 and 14 July 2023.

2. Order pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW) that the plaintiff/cross-defendant is to be paid the specified gross sum in the amount of $56,550.30 in respect of the costs made in order (1) above.

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Decision last updated: 15 February 2024