He v Hecker

Supreme Court of NSW|2013-11-19

Judgment 1HER HONOUR: This judgment deals with costs arising from an appeal from a Local Court decision. 2On 3 September 2013, I delivered judgment: He v Hecker [2013] NSWSC 1219. The orders I made are as follows: "(1) The appeal is dismissed. (2) The decision of Magistrate Bradd dated 22 April 2013 is affirmed. (3) The summons filed 24 June 2013 is dismissed. (4) Costs are reserved." 3The issue of costs has been dealt with by way of written submissions from both parties. On 11 November 2013, my associate received some unsolicited submissions from both Ms He and Ms Hecker. I have read the contents of Ms He's submissions and formed the view that what is contained there does not relate to the costs argument in these proceedings. 4Ms Hecker's recent submissions relate to the costs involved in erecting the dividing fence and the removal of the encroachments on her property. While these do not relate to the costs issues in the Local Court and this Court, later in this judgment I shall refer to them to assist the parties as they relate to the implementation of the Magistrate's orders. 5Both parties seek their costs of the appeal in this Court and their costs of the Local Court proceedings. Both litigants represented themselves in both the Local Court and in this Court.

Costs generally 6The starting point is s 98 of the Civil Procedure Act 2005. It relevantly reads: "98 Courts powers as to costs (1) Subject to rules of court and to this or any other Act: (a) costs are in the direction 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. ... (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 costs are to be paid is to be entitled to: (a) costs up to, or from, a specified stage of the proceedings, or (b) a specified proportion of the assessed costs, or (c) a specified gross sum instead of assessed costs, or (d) such proportion of the assessed costs as does not exceed a specified amount (...)" (My emphasis added) 7Rules 42.1 and 42.2 of the Uniform Civil Procedure Rules 2005 read: "42.1 General Rule that costs follow the event 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. 42.2 General rule as to assessment of costs Unless the court orders otherwise or these rules otherwise provide, costs payable to a person under an order of the court or these rules are to be assessed on the ordinary basis." 8The sum of $XXXX that Ms Hecker seeks for her costs covers both these proceedings and the Local Court proceedings. She claims disbursements for searches, postage and filing fees in the sum of $656.85; the costs of obtaining legal advice in the sum of $900; travel expenses of $50.40; and compensation for loss of income in the sum of $XXXX Ms He has sought the sum of $8,159.35, being costs relating to these proceedings plus interest. I will firstly, deal with the costs of the Local Court proceedings and then the costs of this appeal.

Costs of the Local Court proceedings 9Ms Hecker claims costs that she incurred in the Local Court. The Magistrate did not make any order in relation to costs of the Local Court proceedings. Ms He submitted that, as Ms Hecker did not seek orders in relation to costs when the proceedings were before the Local Court she should not be able to do so now. I agree. Ms Hecker should have sought them in the Local Court. She did not do so. I decline to award Ms Hecker her costs incurred in the Local Court proceedings. 10If I am wrong in this approach and should have made an order for costs, I would have made an order that each party pay her own costs in the Local Court. This order reflects the approach the Magistrate adopted as he ordered each party to pay half the costs of firstly, the surveyor's costs; and secondly, the cost of the dividing fence.

Costs of this appeal 11In so far as the costs of this appeal is concerned, Ms He was unsuccessful with her appeal. Costs are discretionary. Costs normally follow the event. As Ms He was unsuccessful with her appeal she should pay Ms Hecker's costs. I make an order that Ms He is to pay Ms Hecker's costs of this appeal on an ordinary basis.

Gross fixed sum of costs 12This matter involves a dividing fence, where both parties were self represented. The costs that a self represented litigant can recover are limited. In these circumstances, rather than burdening the parties to the expense of having Ms Hecker's costs assessed by a costs assessor, I have decided to adopt the approach set out in s 98(4)(c) and to award a gross sum of costs to be paid by Ms He. 13In Filmlock Pty Limitd v Nissi Investments Limited (No 3) [2013] NSWSC 1594, Pembroke J at [3] referred to Idoport Pty Limited v National Australia Bank [2007] NSWSC 23 at [9] where Einstein J summarised the following principles to be considered when making a gross fixed sum costs order: "ii. the touchstone requires that the Court be confident that the approach taken to estimate costs is logical, fair and reasonable: Beach Petroleum at [16]; iii. the fairness parameter includes the Court having sufficient confidence in arriving at an appropriate sum on the materials available: Harrison v Schipp (2002) 54 NSWLR 738, per Giles JA at para [22]; [following (Wentworth v Wentworth (CA, 21 February 1996, unreported, per Clarke JA) and adopted in Sony Entertainment v Smith (2005) 215 ALR 788; [2005] FCA 228; BC200500963 at para [199]; iv. a gross sum assessment, by its very nature, does not envisage that a process similar to that involved in a traditional taxation or assessment of costs should take place: Harrison v Schipp at para [22]; v. the gross sum "can only be fixed broadly having regard to the information before the Court": Beach Petroleum at 124; [In Hadid v Lenfest Communications Inc [2000] FCA 628 at [35] it was said that the evidence enabled fixing a gross sum "only if I apply a much broader brush than would be applied on taxation, but that ... is what the rule contemplates".] vi. nevertheless the power to award a gross sum must be exercised judicially, and after giving the parties an adequate opportunity to make submissions on the matter: Leary v Leary [1987] 1 WLR 72 at 76, and Beach Petroleum NL v Johnson (No.2) (1995) 57 FCR 119 at 120"; vii. In terms of the necessity for the approach taken to be logical, fair and reasonable, Von Doussa J in Beach Petroleum NL & Anor v Johnson & Ors (No 2) (1995) 57 FCR 119, put the matter as follows, at paras [16]: "On the one hand the Court must be astute to prevent prejudice to the respondents by overestimating the costs, and on the other hand must be astute not to cause an injustice to the successful party by an arbitrary "fail safe" discount on the cost estimates submitted to the Court: Leary v Leary at 265. ..." 14I turn to consider the quantum of Ms Hecker's claim for costs but in so far as she claims costs in relation to the Local Court proceedings they will be disallowed.

(a) Postage, filing fees and transcript 15A table showing the costs relating to postage, filing fees and transcript claimed by Ms Hecker appears below. Amount 1 Registered postage for Fencing Notice 22 October 2012 $3.90 2 Local Court Filing Fee 23 November 2012 $83.00 3 Registered postage for Application For Fencing Order 23 November 2012 $3.90 4 Historical Search for Lot 3 DP 526196 from NSW Government Land & Property Information Division $11.90 5 Torrens Title Search for Lot 3 DP 526196 from NSW Government Land & Property Information Division $11.90 6 Registered postage for Affidavit dated 13 February 2013 $5.10 7 Registered postage for Affidavit dated 20 February 2013 $3.90 8 Registered postage for letter dated 5 June 2013 $3.90 9 Registered postage 28 June 2013 $3.90 10 Duplicate recording of the Local Court Hearing $140.25 11 Registered postage 09 July 2013 $5.10 12 Registered postage 16 July 2013 $5.10 13 Filing Fee for Notice Of Motion $366.00 14 Registered postage for Notice Of Motion 28 June 2013 $3.90 15 Postage of transcript $5.10 Total: $656.85

16On 26 July 2013, Campbell J made an order that, so far as they may be recoverable by self represented persons, the costs of the notice of motion are costs in the appeal. As Ms Hecker was successful in the appeal the sum of $366 for the filing fee of the notice of motion (Item 13 above) filed by Ms Hecker should be allowed. 17As the summons seeking to appeal from the Magistrate's decision was filed on 24 June 2013, I will allow items 9 to 15 of the costs that relate to this Court. I allow the sum of $529.35 for filing fees, postage and transcript.

(b) Travelling expenses 18Ms Hecker has claimed $50.40 for travel expenses for seven train tickets but some relate to the Local Court proceedings. I allow only those in relation to the proceedings before this Court for the dates 5 July 2013, 26 July 2013 and 21 August 2013. These costs total $21.60.

(c) Legal advice 19Ms Hecker claimed an amount of $900 for the costs of obtaining legal advice. A copy of the invoice and the receipt that shows an amount of $900 for legal advice in relation to this matter was sought and that account has been paid. However, while the advice relates to encroachment of the wall, it was for "professional costs incurred to 20 October 2012". That is the legal advice took place before these appeal proceedings were commenced. Hence, I disallow the sum of $900.

(d) Loss of income 20Ms Hecker claims an amount of $XXXX for compensation for loss of income due her attendance before the court. Ms Hecker referred to Petrunic v Barnes [1989] VR 927 and Australian Blue Metal Ltd v Hughes [1970] 2 NSWR 119 which stated that personal attendance at court was necessary even in certain cases where defendants are represented. Ms Hecker submitted that her personal attendance in court was necesssary and therefore she should be entitled to be compensated for her loss of income at the daily rate of $XXXX for a total of seven days. 21Ms Hecker also relied upon Secretary, Department of Foreign Affairs and Trade v Boswell (No 2) (1992) 39 FCR 288 to support her claim for loss of income. In Boswell (No 2) where the court held that a litigant in person who has had to have time away from her or his employment to attend court or prepare a case is entitled to recover those costs. 22However, in Cachia v Hanes (1994) 179 CLR 403; [1994] HCA 14, the High Court held that an award of costs did not include time spent by a litigant who was not a lawyer in preparing and conducting his or her case. The majority, Mason CJ, Brenann, Deane, Dawson and McHugh JJ stated at 417 that: "[I]n some cases... courts have treated the loss in earnings of a litigant incurred in the course of the presentation or the conduct of his case as a disbursement. Clearly, that is merely an indirect way of recompensing a litigant for time spent in the preparation or conduct of his case which, if it is not contemplated by the relevant legislation or rules, is not permissible." 23In Lawrence v M D Nikolaidis [2003] NSWCA 129, Hodgson JA (with whom Beazley AJ agreed) referred to a decision by the Victorian Court of Appeal, Lowal v Zoccoli (2002) 4 VR 399 where Phillips JA stated: "[12] That is enough to dispose of the present case, for it establishes that the Taxing Registrar in the County Court erred in allowing what was, in effect, compensation for loss of income. The County Court judge, on review, allowed the doctor the ordinary witness allowance; and so much is authorised by the High Court in Cachia v Hanes; for the majority said: Of course a litigant who qualifies as a witness is entitled to the ordinary witness's fees..." 24In Nikolaidis, Hodgson JA further stated at [48]: "I think it follows from these cases that a litigant, whether represented or not, may be entitled to some witnesses' expenses, in addition to time spent actually giving evidence in court." 25In my view Ms Hecker is entitled to some recompense for her loss of earnings. It is appropriate that I apply the current allowance payable to witnesses in accordance with the "Scale of Allowances Paid to Witnesses" contained in New South Wales Government Gazette. It is currently $99.30 a day. I propose to allow Ms Hecker costs to be reimbursed for a portion of the $XXXX she has claimed to attend this Court. I will allow the sum of $99.30 for each of the four days that Ms Hecker attended directions hearings and the hearings before this Court. That totals $397.20. In awarding this lesser amount, I have also taken into account that some of the hearings lasted less than half a day. 26The result is that Ms He is to pay Ms Hecker the total sum of $948.15 which comprises of $529.35 filing fees and postage; $21.60 for travel expenses; and $397.20 for costs of attending court. These amounts total $948.15. I make an order that the plaintiff pay the defendant's costs of these appeal proceedings in the gross fixed sum of $948.15.

Implementing the orders made by the Local Court 27On 22 April 2013, the Magistrate made the following orders for the dividing fence to be erected: "- A 1.8 high colourbond style fence with its centre along the common boundary between 50 and 52 XXXX XXXX between the existing front rendered brick fence and the rear boundary (~33.2m in length). - The exact location of the boundary to be marked by an independent registered surveyor prior to the erection of the fence. - That all vegetation and encroachments along the path of the fence be cleared so that the fence can be constructed. - That each party is to pay half the costs of the surveyor and half the cost of the construction. - That any additional costs incurred for the removal of the obstructions or encroachments along the boundary be payable by Ji HE. Order 52 [Ms He] to remove any encroachments within 30 days. Fence to be erected within 60 days." 28It appears that Ms He did not remove any encroachments within 30 days from the date of my judgment dismissing the appeal. 29On 11 November 2013, Ms Hecker furnished invoices from Nicholas Costello dated 7 November 2013, General Trades and Better Built Fencing both dated 8 November 2013. These invoices total $5,743.20 and have been paid by Ms Hecker. The sum of $605 has previously been paid by Ms Hecker for the surveyor's fees. She seeks Ms He's contribution to these costs.

(a) Surveyor's costs 30Ms Hecker seeks half the costs of registered surveyor's fees in the sum of $302.50. That sum represents Ms He's portion of these fees. Ms He submitted that she should not have to pay her portion of the costs of the registered surveyor because she did not agree to the surveyor engaged and alleged that the registered surveyor undertook work on Ms Hecker's house extension instead of marking the boundary. However, the Magistrate has already dealt with the issue of the surveyor's fees and made an order that each party pay half the costs of the surveyor's fees. That order still stands and is in force. Ms He is liable to pay Ms Hecker the sum of $302.50 by virtue of the Local Court order.

(b) Fencing 31On 8 November 2013, Better Built Fencing supplied and installed the 1.8 metre high colourbond fence, cut one panel according to the slope of the stairs, four core holes and seven rock holes at a total of $3,090. The Magistrate has ordered that Mr He pay half of these costs. Ms He is liable to pay $1,545 being half the costs of the supply and installation of the fencing.

Additional costs - encroachments 32On 7 November 2013, Nicholas Costello of Costello's Gardening Services removed the brick garden bed walls, disposed of the bricks, fitted the replacement perimeter sheeting to the garden beds (approximately 22 metres) the total costs being $2,002. 33On 8 November 2013, General Trades cut and safely removed the hot/cold water and gas copper lines that were on or crossing the boundary in the way of the fence, safely crimped off and welded the lines. The total costs being $651.20. 34In the Local Court Ms He was ordered to remove any encroachments. Therefore, she should pay the sums of $2,002 and $651.20 totalling $2,653.20. 35The total sum of the surveyor's costs, costs of the fencing and the costs of the removal of encroachments that Ms He is to pay to Ms Hecker in relation to the orders made by the Local Court is $4,500.70

In relation costs of this appeal proceedings the Court orders that: (1) The plaintiff is to pay the defendant's costs of the appeal on an ordinary basis. (2) The plaintiff is to pay the defendant's costs of these proceedings in the gross fixed sum of $948.15.

Amendments 20 November 2013 - Figures relating to income redacted. Amended paragraphs: 9, 20 and 25 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 November 2013

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