Sood v Borthwick

Supreme Court of NSW|2022-07-06|Before: Slattery J, Mr J

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 19th 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 to the parties that if the parties agreed it was prepared to deal with the matter as a final hearing, because the evidence would be necessary to establish the respective causes of action on an interlocutory basis would be much the same evidence as would be deployed at a final hearing. The parties agreed with this course and over several days in late October and early November collected their evidence and presented it to complete a final hearing.
The proceedings were heard or with the subject of mentions before the court over several part days, namely: 26, 27, 28, 29 October; 4, 5, 9, 10 & 16 November 2021. The final hearing took place on 10 November. Mr J. Horowitz of counsel, instructed by Mr J. Collins of Crisp Law appeared for the plaintiff. Mr M. Gunning of counsel, instructed by D. Sattout of Sattouts Legal Pty Ltd, appeared for the defendant.

Applicable Legal Principles

The exercise of the Court's discretion to make an order for costs when an applicant does not wish to proceed with an application, or where respondents have consented to an application, or the parties have otherwise agreed on the outcome of the application or proceedings is informed by principles stated in two Australian leading cases. The first is a statement of Hill J in Australian Securities Commission v Aust-Home Investments Limited (1993) 44 FCR 194, at 201; (1993) 116 ALR 523; cited in Oxford Funding Pty Ltd v Oxford Asia Pacific Investments Pty Ltd (No. 2) [2006] FCA 1542, (at [5]): "(1) Where neither party desires to proceed with litigation the court should be ready to facilitate the conclusion of the proceedings by making a cost order … (2) It will rarely, if ever, be appropriate, where there has been no trial on the merits, for a court determining how the costs of the proceeding should be borne to endeavour to determine for itself the case on the merits or, as it might be put, to determine the outcome of a hypothetical trial … This will particularly be the case where a trial on the merits would involve complex factual matters where credit could be an issue. (3) In determining the question of costs it would be appropriate, however, for the court to determine whether the applicant acted reasonably in commencing the proceedings and whether the respondent acted reasonably in defending them (4) In a particular case it might be appropriate for the court in its discretion to consider the conduct of a respondent prior to the commencement of the proceedings where such conduct may have precipitated the litigation … (5) Where the proceedings terminate after interlocutory relief has been granted, the court may take into account the fact that that interlocutory relief has been granted … [Footnotes omitted]".
The second statement is that of McHugh J in Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622 at 624-5; (1997) 143 ALR 1 at 3; [1997] HCA 6: "In most jurisdictions today, the power to order costs is a discretionary power. Ordinarily, the power is exercised after a hearing on the merits and as a general rule the successful party is entitled to his or her costs. Success in the action or on particular issues is the fact that usually controls the exercise of the discretion. A successful party is prima facie entitled to a costs order. When there has been no hearing on the merits, however, a court is necessarily deprived of the factor that usually determines whether or how it will make a costs order. In an appropriate case, a court will make an order for costs even when there has been no hearing on the merits and the moving party no longer wishes to proceed with the action. The court cannot try a hypothetical action between the parties. To do so would burden the parties with the costs of a litigated action which by settlement or extra-curial action they had avoided. In some cases, however, the court may be able to conclude that one of the parties has acted so unreasonably that the other party should obtain the costs of the action. … Moreover, in some cases a judge may feel confident that, although both parties have acted reasonably, one party was almost certain to have succeeded if the matter had been fully tried. … If it appears that both parties have acted reasonably in commencing and defending the proceedings and the conduct of the parties continued to be reasonable until the litigation was settled or its further prosecution became futile, the proper exercise of the cost discretion will usually mean that the court will make no order as to the cost of the proceedings. [Footnotes omitted]".
It can be important to distinguish between, on the one hand, cases in which one party after litigating for some time effectively surrenders to the other party, and, on the other hand, cases where a supervening event or settlement so removes or modifies the subject of the dispute that, although it could not be said that one side has simply won, no issue remains between the parties except as to costs. In the former type of case there will commonly be lacking any basis for the exercise of the Court's discretion otherwise by an award of costs for the successful party. But the latter kind of case usually creates problems in assessing the costs outcome and there may be difficulty discerning a clear reason why one party rather than the other should bear the costs: ONE.TEL Ltd v Deputy Commissioner of Taxation [2000] FCA 270; (2000) 101 FCR 548 at 553, cited with approval in Edwards Madigan Torzillo Briggs Pty Ltd v Stack [2003] NSWCA 302 at [5]. The distinction between the two categories is often helpful in exercising the costs discretion although neither category can be precisely defined, the boundary between them can be unclear and other factors may be relevant: Bitannia Pty Ltd v Parkline Constructions Pty Ltd [2009] NSWCA 32 per Basten JA at [79] - [81].

Two Neighbours, a Boundary and a Trench

Some short background is required to the costs issue for determination. That background shows the Court's attempts to reduce the issues, bring the proceedings on for final hearing and reduce the overall costs burden to the parties.
After Ms Sood filed her Summons, the proceedings returned to Court on 26 October 2021. The matter came back to Court on 27 October 2021, when the Court appointed Mr McFall as the Court expert and ordered the defendant to put forward a proposal as to how the works might be completed. At that stage the Court was confronted with an open trench more than one metre deep in places with uncertainty as to which side of the boundary line the trench had been dug.
Mr Borthwick served a proposal for the completion of the works and on 29 October 2021 Ms Sood served a counter proposal, outlining why Mr Borthwick's proposal was unlawful and suggesting the manner in which the work could be done lawfully. At the hearing on 29 October Mr Borthwick was ordered, as a temporary measure, to refill the trench partially so that it did not exceed at any point one metre in depth.
The question of lawfulness was whether the excavation complied with the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008, regulation B.58(1). On 29 October 2021 the court also ordered service of a geotechnical engineer's report on the question of conformity with regulation 3.58(1). On 3 and 4 November 2021 Mr McFall provided the Court with a hand drawn sketch and then computer-generated images of the boundary and the related properties which made the trespassory nature of the trench clearer.
Another issue emerged at the same time, namely whether the solicitors for the plaintiff, Crisp Law, had properly communicated the Court's orders to the Court expert. It ultimately emerged that they had not done so, and orders were made for the firm to bear the wasted costs of the Court expert in undertaking work which was not required by the Court's instructions. That was done and the Court has dealt with the balance of the Court expert's fees on an interim basis, requiring the parties to share those fees equally.
On 5 November 2021 the Court determined it would conduct a final hearing of these proceedings on Wednesday, 10 November and made directions to prepare the parties for that hearing. On 8 November 2021 the Court expert Mr McFall provided full photographic evidence corresponding with the directions of the Court which depicted a stringline representing the boundary's location relative to the trench. This showed for the first time the extent of the trespass that was occasioned by the trench. This quickly led to the resolution of the proceedings. The orders set out above were made two days later, immediately before the date for hearing on 10 November 2021. But the hearing that day was occupied with matters including expert evidence from Mr McFall, as to the proper interpretation and implications of his report and related matters.

The Parties' Contentions and Facts Relevant to Them - Ms Sood's case

The following facts and contentions are relevant to Ms Sood's claim for costs.
Ms Sood contends that she would almost certainly have won these proceedings if the case had been tried and that Mr Borthwick has effectively capitulated in final orders made on 10 November 2021. Further she says that Mr Borthwick acted unreasonably by precipitating the proceedings, and that the proceedings terminated after interlocutory relief, so the Court may take into account the fact that interlocutory relief was granted.
On 14 August 2021 Mr Borthwick applied to the Land and Environment Court to carry out remedial works, and to access the side passage between number 20 and number 22 to carry out remedial repairs to the wall. On 15 October 2021 Ms Sood's solicitor wrote to Mr Borthwick's solicitor explaining why Mr Borthwick's remedial works were unlawful in relation to the depth of the proposed trench, the requirement of a geotechnical engineering report and the need for development consent from the Council. Ms Sood says that if Mr Borthwick had provided a proposal complying with these requirements that these proceedings would probably have been avoided. The Land and Environment Court proceedings were discontinued on 19 October 2021. On 21 October 2021 Ms Sood sent a text message to Mr Borthwick complaining about interference to number 20 from number 22 and requested that it not happen again.
Then without further notice to Ms Sood on 25 October 2021 Mr Borthwick commenced the excavation works the subject of these proceedings. Ms Sood says she pleaded with him to stop. This appears to be disputed but the dispute may not matter because the same day her solicitor, Crisp Law, sent Mr Borthwick's solicitors, Sattouts Legal a letter requesting the discontinuation of the works and threatening to bring proceedings for an injunction, if the works continued.
Mr Borthwick's solicitor replied foreshadowing a defence to such an application. Ms Sood says she is blameless for the commencement of the litigation and has as a result been put to the inconvenience and expense from litigation which should never have taken place. She says this was unreasonable pre-trial conduct on the part of Mr Borthwick.
Ms Sood submits that the consent orders made on 10 November 2021 achieved for her the permanent injunction that she originally sought in the Summons of 26 October 2021 indicating that in effect Mr Borthwick capitulated to her claim, entitling to her costs on that basis as well.
Ms Sood also says that had a contest occurred her claim was almost certain of success. She claims that her cause of action for injunctive relief was always grounded in trespass as was signalled by the covering page of the Summons "type of claim: injunction, trespass and damage to property", which was also stated in submissions from the very first hearing of the matter before the Court. Ms Sood adds to this submission by pointing out that Mr Borthwick's own evidence suggests that she would have almost certainly succeeded in establishing some trespass by subterranean works and excavation on 25 and 26 October 2021 from the plans submitted to the Sydney City Council because they do not assist Mr Borthwick in justifying his apparent belief that he owned the area that he excavated. And the plaintiff submits that Mr McFall's evidence conclusively shows that Mr Borthwick's trench does encroach onto Ms Sood's property for distances ranging between 55 millimetres (at the front of the two houses) to 60 millimetres (at a midpoint) and 53 millimetres from the rear lane.
Ms Sood submits that Mr Borthwick has admitted causing the works to be undertaken in the passageway which must have inevitably resulted in trespass to the plaintiff's land. Ms Sood's video evidence does show contractors standing on her side of the boundary line and it is difficult to accept that all the works could have been done in the relatively small width of land (160 to 200 millimetres) available to Mr Borthwick along the passageway for the doing of those works.

The Parties' Contentions and Facts Relevant to Them - Mr Borthwick's Case

Mr Borthwick points to the limited nature of the initial relief sought in the proceedings. The initial Summons filed on 26 October 2021 simply sought a declaration that Ms Sood's land "has a right of support from the defendant's land pursuant to Conveyancing Act 1919" and damages arising from the "loss of right to support the plaintiff's land", apparently a reference to the Conveyancing Act 1919, s 177. The affidavits filed in support refer to the absence of consent or any court order for Mr Borthwick to access Ms Sood's property and the concern that the excavation works might undermine support for Ms Sood's land and Number 20.
Mr Borthwick says that the original Summons did not plead trespass and the evidence did not establish that the excavated trench resulted in removal or loss of support to Ms Sood's land number 20. Mr Borthwick submits that if the outcome of the proceedings were assessed by reference to the original Summons, that Ms Sood's claim failed because she abandoned any claim under Conveyancing Act 1919, s 177 and served no evidence to demonstrate a loss of support. Mr Borthwick says that the plaintiff should not be rewarded for amending her Summons on the day of the final hearing, 10 November 2021.
The defendant submits that the Amended Summons pleaded clauses of action namely trespass for the first time, long after it had been discussed during the interlocutory skirmishes before that date. The Amended Summons provided as follows: 4. A declaration allowing the Defendant to enter on the Plaintiff's land to carry out waterproofing works under the pathway between the Plaintiff's Land and the Defendant's Land being Lot 1 in Deposited Plan 920860, so long as such works are lawful and do not interfere with the Plaintiff's proprietary rights any greater than reasonably necessary. 5. An order requiring the Defendant to restore the pathway and gate located between the Plaintiff's Land and the Defendant's Land as soon as practical upon completion of the waterproofing works expressed in order 4.
Mr Borthwick says that when confronted with the Amended Summons on 10 November 2021 he consented to orders that reflected the new relief claimed. He says that costs should not be assessed on the basis that this suit would have succeeded, because at no point during the proceedings did the plaintiff serve any evidence to demonstrate that a trespass had occurred, and she did not serve evidence to show that the excavated trench constituted a trespass, before Mr McFall's report was available.
Mr Borthwick submits that when steps were proposed to be taken to cure the lack of evidence by the appointment of Mr McFall on 28 October so that he could, as the order itself said, "undertake the survey of the boundaries between the plaintiff and defendant's properties and to physically mark out and photograph that boundary in relation to the current earthworks for the benefit of the parties and the Court", that he, Mr Borthwick, cooperatively agreed to the appointment of the Court appointed expert but also to Mr McFall as that expert and offered for the plaintiff's legal representatives to communicate with Mr McFall on behalf of both parties in order to save costs.
Mr Borthwick points out that on 9 November 2021, just prior to the final date, the parties received Mr McFall's photographs showing the boundary line in relation to the trench and that for the first time at this very late stage Ms Sood had survey evidence that demonstrated the trespass. Mr Borthwick's submissions make the point that had the Court not appointed and had the defendant not paid for Mr McFall's report, Ms Sood may not yet have any evidence to discharge the burden of establishing where the boundary was in relation to the trench.
Mr Borthwick also points out that the delay in Mr McFall ultimately giving a report as late as 9 November 2021 was because he had to attend the passageway between number 20 and number 22 for a second time on 8 November 2021 in order to physically mark out and photograph the boundary in relation to current earthworks for the benefit of the parties. Mr McFall had been unable to perform that task on his prior visit because he was not properly informed of the Court's orders to that effect and to photograph that boundary.
It is undoubted that delay was occasioned by Crisp Law's failure to communicate with Mr McFall. Mr Borthwick has a point that as a result Ms Sood was only in possession of relevant evidence very late in the day and Mr Borthwick was only able to resist that evidence and take a position in relation to it shortly before the final hearing.
As to the pre-trial communications between the parties Mr Borthwick argues that the Court cannot make findings about disputed facts or conduct a hypothetical action between the parties to determine the question of costs at this stage and that the Court should therefore have no regard to the disputed events and words that Ms Sood attributes to Mr Borthwick and his builder before the commencement of the hearing. Mr Borthwick characterises the pre-trial situation as one in which the parties were attempting to negotiate a mutually satisfactory outcome, but she simply commenced ex parte proceedings pre-empting the possibility of settlement before trial.
Moreover, Mr Borthwick says that he genuinely and reasonably believes that he excavated on his side of the boundary because of a previous survey report which had been prepared by Azimuth Surveyors.
Mr Borthwick says there is no basis to conclude that this proceeding would have been a success for Ms Sood or that he has acted so unreasonably that Ms Sood had no reasonable alternative but to commence proceedings on 26 October 2021. In contrast, Mr Borthwick says he acted reasonably throughout the course of the proceedings by doing the following: conceding to and complying with orders to provide temporary remedial work on the excavated trench; consenting to and complying with orders for a geotechnical report; consenting to and complying with orders for no further work to be done to the trench; consenting to and co-operating with the Court appointed expert; consenting to the expedition of the proceedings to final hearing on 10 November 2021; dealing with Ms Sood's pleading amendments and the widening of the interlocutory issues fielded by her Amended Summons; and, offering some solutions to reconfigure his works to provide potential solutions to the standoff between the parties.
After this survey of the facts and contentions of the parties the Court now considers what costs orders should be made in this somewhat unusual case.

The Calderbank Offer

Ms Sood's solicitors, Crisp Law, made a Calderbank offer on 8 November 2021 in terms that were consistent with prayers 4 and 5 of the Amended Summons. Mr Borthwick did not accept the Calderbank offer. Ms Sood says she bettered the Calderbank offer, because she obtained a permanent injunction when the offer did not seek one and the offer provided consent to Mr Borthwick to access her land to conduct further works, whereas the present agreed injunction prevents further access, allowing only completion of the present works. Finally, she says the Calderbank letter offered to dismiss her claims for all damages, whereas her damages claim is still on foot.
These arguments are not persuasive. The Calderbank letter plays no part in the Court's determination of the costs of these proceedings. The Calderbank letter was too late to save any costs. It was issued on 8 November and was open for acceptance only until 6pm on 9 November 2021, the evening before the final hearing on 10 November 2021. At the time the offer was open for acceptance it can be expected that all relevant costs had been incurred, including the retention of counsel for the following day. Moreover, the Calderbank offer was only open for a period of a little more than 24 hours, which in the heat of litigation, with the Amended Summons and the McFall report being provided simultaneously with the Calderbank offer, gave Mr Borthwick very limited time to give the offer serious consideration. It need not be considered any further.

Costs of the Court Expert

The orders made on 27 October 2021 appointed Mr McFall to undertake the survey of the boundary and to "physically mark out and photograph the boundary in relation to the current earthworks". Crisp Law did not communicate that instruction to Mr McFall, resulting in him producing a report which did not meet the Court's requirements. Mr Borthwick argues and the Court agrees that the failure to communicate that important part of the Court's instruction, led to the need for Mr McFall to revisit the premises to comply with the Court's original order.
This failure did not come to the Court's attention until 4 November, causing the issue of communications with Mr McFall to have to be reagitated before the Court and for the Court to then order Mr McFall to re-attend the site. None of that additional work would have been necessary if Crisp Law had correctly communicated the Court's orders to the court appointed expert, or at least copied the defendant's lawyers into the correspondence with Mr McFall. As a result of those failures, the Court has already ordered Crisp Law to itself bear the extra costs incurred by the expert resulting from Crisp Law's miscommunication with the expert.
To attempt to rectify the financial consequences of this error Mr McFall was asked to isolate the additional costs that he incurred by reason of having to go back to the site. Crisp Law ultimately consented to orders that it pay that amount, namely $4,053.50. Reflecting this, on 16 November 2021, the Court made the following orders in respect of the Court expert: "(1) Order that the solicitors representing the plaintiff shall pay $4,053.50 of the professional surveyors' fees charged by Mr Glenn McFall in his memoranda of fees dated 11 November 2021 and now marked Exhibit "C". (2) Order that within 21 days of the date of this order, namely by 7 December 2021, each of the plaintiff and the defendant will pay $9,967.36, being 50% of the balance of Mr McFall's total fees of $23,988.25, after the deduction of the amount referred to in Order (1). (3) Further note that Order (2) is an interim order and the ultimate burden as between the parties of the costs of the Court expert, Mr McFall, will be determined as part of the Court's consideration of final costs orders in these proceedings."
Ms Sood submits the Court should now order Mr Borthwick pay 100 per cent of Mr McFall's costs, on the basis that had Mr Borthwick adhered to the numerous notices and pre-litigation warnings and not committed acts of trespass with his unlawful works that it would not have been necessary to appoint the Court expert and incur his costs. Mr Borthwick argues that the costs of the Court appointed expert and the costs thrown away arising out of Mr McFall's second visit should be paid by Ms Sood.
The Court had hoped that it would not be necessary to revisit this issue. But there is still a contest about who should bear the defendant's costs thrown away by the same miscommunication.
But in the Court's view it is appropriate that the part of Mr McFall's costs that have not been paid by Crisp Law should fall to be paid the same way as the other costs of these proceedings, which are dealt with below.
Those costs should be borne on the plaintiff's side of the record. But in my view, there is a sound case for them to be borne by Crisp Law rather than the plaintiff, based upon the same considerations that led to Crisp Law paying Mr McFall's extra costs of revisiting the site. The possibility of such an order being made was raised in submissions and Crisp Law is already on notice of it. The defendant would not have incurred these costs but for Crisp Law's miscommunication with the expert. Ms Sood should not bear the professional costs of the defendant that were wasted in relation to Mr McFall having to attend the site and the defendant's costs of the further Court hearing associated with rectifying the miscommunication.
Mr Borthwick's legal costs in engaging Sattouts Legal and Mr Gunning of counsel to attend Court on 4 November 2021 to address the plaintiff's solicitors miscommunication of the Court's orders to Mr McFall, are costs which should have been avoided. Mr McFall had been aware of the Court's orders of 27 October. Those additional costs of Sattouts Legal which the Court has satisfied upon the evidence are $1,980 and Mr Gunning of $2,200. Those should be paid by Crisp Law.

Consideration of Overall Costs Issues

On the question of costs, the Court is not limited to a binary outcome, ordering the defendant to pay the plaintiff's costs or vice versa. The mix of unsatisfactory conduct on both sides of this case calls for something in between. So, the Court will apply the relevant legal principles by making an order which reflects the justice and responsibility of each party for the situation.
The plaintiff can get little comfort in support of her claim for costs from the grant of an interlocutory injunction. When the proceedings commenced the evidence of an actual trespass was non-existent. There was some evidence of the possibility of undermining the plaintiff's property merely by the digging of a trench so close to her building on number 20. But the plaintiff's case was neither pleaded nor supported by clear evidence formulated to produce the final relief on which she was ultimately successful. The word "trespass" did appear in the original summons but in a manner that did not clearly signal the nature of the plea. That is often the situation at interlocutory hearings, but it does mean that the interlocutory determination it is not a weighty factor in showing that plaintiff would have been successful at final hearing.
The plaintiff behaved reasonably before the hearing but through her solicitors failing to carry out the Court's instructions, she caused unreasonable delay and expense during the conduct of the proceedings.
The plaintiff's good prospects of success at a final hearing became clear only after her case was properly pleaded and supported by appropriate evidence. That came together with the filing of the Amended Summons just before the commencement of the final hearing and the availability of Mr McFall's final report on 9 November based upon the transmission of correct instructions to him.
The defendant behaved unreasonably to a degree in commencing the works without taking more extensive precautions to ascertain the boundary and obtain appropriate pre-excavation approvals. Whilst he had taken initially a firm position in commencing the works, the defendant was nevertheless a very cooperative and reasonable litigant throughout the course of the somewhat meandering preparation and conduct of the plaintiff's case. Given Mr McFall's report it can now be said with confidence against the defendant, that the plaintiff was likely to succeed at final hearing. But that was only obvious from the time that the McFall report was available after much of the costs of been expended or committed to on both sides.
Considering all these matters a fair order of costs in the proceedings is one in which the defendant is required to pay 35% of the plaintiff's costs of the proceedings. The plaintiff will have to bear the other 65%. But as the considerations below show the plaintiff's costs may be reduced. And the way Mr McFall's fees have been borne will need to be adjusted between the parties 35:65 rather than 50:50.
The plaintiff's solicitor's conduct of the proceedings was substandard and resulted in delays and increased costs overall, for which the defendant was not responsible and indeed for which the plaintiff herself was not responsible. Crisp Law has already paid the part of Mr McFall's fees occasioned by the miscommunication. But the episode also caused the matter to be unnecessarily relisted and costs to be incurred by the defendant's legal representatives in the sum of $4,180 and this should also be paid by Crisp Law as a separate item apart from the other overall costs order.
This is an issue where there may be a conflict of interest between the plaintiff's solicitor and the plaintiff, which cannot easily be resolved by the Court. The matter will be referred to the President of the Law Society for review of Crisp Law's fees and the overall costs outcome from the plaintiff's perspective, to ascertain to what extent the plaintiff was disadvantaged in costs expenditure and costs recovery by her own solicitor. It can be said that had the miscommunications not occurred, the McFall report would probably have been available earlier, the overall costs of the proceedings would probably have been reduced, and the extent of the plaintiff's costs recovery from the other side would probably have been higher.
The Court has the impression that fees charged by Crisp Law appear to be high overall, given the Court's attempts to compress issues in these proceedings and to conduct a final hearing as quickly as possible, allowing the proceedings to be concluded within just a few weeks. But whether the Court's impression is correct may require closer analysis by the President of the Law Society on more detailed facts that are not available to the Court. This is a matter which may also be considered by the President.
The Court also has the impression that Mr McFall's total fees for doing this survey at over $23,000 also seem high for the task on which he was engaged. Again, the Court is not competent on its own to judge this question and does not have sufficient information to know whether that impression is correct. But the mere fact that the Court has ordered the payment of his fees does not preclude the parties from questioning the reasonableness of their quantum through appropriate professional channels, as is the case with all Court experts. The Court is not indicating that should be done but is making clear that the Court's orders for the payment of his fees in a particular amount are not an obstacle to such a process and this will be noted in the orders below.

Conclusions and Orders

The final orders entered on 15 November 2021 required, "[w]ithin 7 days after obtaining appropriate approval from the Council, the defendant shall ensure that the further work described in this paragraph ("the further work") shall be undertaken." The Court's objective in giving judgment now is to ensure that all injunctive relief issues between the parties are resolved. Before giving judgment, the Court sought confirmation from the parties over some months in early 2022 about whether the approvals have been given and the work had been done in accordance with the Court's orders. This was confirmed yesterday so the Court is now giving judgment today.
But it is not clear whether the plaintiff seeks to make any further claim for damages. The Court indicated on the final hearing day that if a claim for damages were to be pressed that it could be referred to the Local Court, for example, given that it was probably within the Local Court's jurisdiction. Claims for exemplary damages made that in circumstances like this rarely exceed the range of $5000-$10,000 and few compensatory damages were identified. The merit in pursuing a claim for exemplary damages where the defendant at least claims that his actions were guided by geotechnical report is to be doubted. But if the plaintiff wishes to do so then it will first be referred to a court annexed mediation. After that, if not resolved, the claim may need to be referred to the Local Court. If such a claim is not made, there is nothing left in these proceedings, and they can be dismissed. The Court's orders will provide for an election between these options.
For these reasons the Court makes the following orders and directions: 1. order the defendant to pay 35% of the plaintiff's costs of these proceedings; 2. direct that within 14 days, that is by 19 July 2022 on the plaintiff must indicate in writing to the defendant and to the Court with precision any damages or other relief that she continues to seek in these proceedings ("the further relief"), and 1. if she does indicate that she seeks further relief by that date then the further relief is referred under civil procedure act section 26 to a court-annexed mediation to be held before 30 September 2022 and the parties are further granted liberty to approach the registrar to appoint a suitable date for such mediation; and 2. if she does not indicate that she seeks any further relief, then the Amended Summons in these proceedings will be dismissed and to that end the parties should file consent orders dismissing the balance of the claim with no order as to costs; 1. order the solicitors for the plaintiff, Crisp Law, to pay themselves and not their client under Civil Procedure Act s 99, the defendant's costs thrown away by the need to re-engage the Court appointed surveyor, Mr McFall to re-attend at the site the subject of these proceedings on 8 November 2021, namely the sum of $4,180; 2. order that the parties shall bear the costs of Mr McFall's surveyor's fees in the proportions 35% for the plaintiff and the 65% for the defendant; 3. refer the conduct of Crisp Law to the President of the Law Society to ascertain whether the plaintiff's legal fees have been increased and the plaintiff's recovery of legal fees from the other side reduced, or any other disadvantage suffered by the plaintiff by reason of Crisp Law's conduct of the proceedings; and 4. the Court notes that the orders on 15 November for the payment of Mr McFall's surveyor's fees do not preclude action by either party to have the reasonableness of those fees assessed.

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: 06 July 2022

At a glance

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Judgment (10 paragraphs)

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Cases Cited (11)