The Applicant shall pay the Respondent's costs of the proceedings (except for costs incurred in connection with the Respondent's cross-claim for the removal of the Applicant's encroachment upon the Respondent's land) on a party and party basis in the sum agreed, or failing agreement, as assessed.

[2]

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Parties

Applicant/Plaintiff:

Wherry

Respondent/Defendant:

Trustees of the Sisters of Charity of Australia

Cases Cited (5)

CITATION : Wherry v Trustees of the Sisters of Charity of Australia [2001] NSWLEC 210 APPLICANT: Wherry PARTIES : RESPONDENT: Trustees of the Sisters of Charity of Australia FILE NUMBER(S) : 30302 of 1999 CORAM: Bignold J KEY ISSUES: Costs :- Respondent wholly successful in resisting Applicant's claims to compensation-Respondent obtaining by concession easement for support in respect of encroachment-Whether usual principle that costs follow the event should apply-Indemnity costs in respect of "Calderbank" letter. LEGISLATION CITED: Encroachment of Buildings Act 1922 Byron Shire Council v Vaughan (No 3) 2001 NSWLEC 102; Droga v Proprietors of Strata Plan 51722 (LEC Unreported 28 November 1997); Hardie v Cuthbert (1988) 65 LGRA 5; CASES CITED: Hofer v Howell (2001) 113 LGERA 391; Kostis v Devitt (1979) BPR 97020; Latoudis v Casey (1990) 170 CLR 534; MGICA (1992) Pty Ltd v Kenny and Good Pty Ltd (No 2) (1996) 70 FCR 236; Morris v Thomas (1991) 73 LGRA 164 DATES OF HEARING: 6 September 2001 DATE OF JUDGMENT: 09/11/2001

By Notice of Motion filed 25 July 2001, the Applicant has restored the question of costs in these proceedings which were brought under the Encroachment of Buildings Act 1922, (the Act) that question having been reserved in my judgment delivered in the proceedings on 5 December 2000 (see [2000] NSWLEC 252, 111 LGERA 216) which made the following orders:

(2001) 113 LGERA 391

(1990) 170 CLR 534

(1996) 70 FCR 236