Glaser v Poole (No 2) [2010] NSWLEC 232

Glaser v Poole (No 2) [2010] NSWLEC 232

The justice of the circumstances justified indemnity costs in the Class 3 proceedings because Mr Poole's very careless construction of the unauthorised encroaching structure caused the Glasers to be joined in proceedings through no fault of their own and had substantial impacts on their amenity and potentially their safety. Indemnity costs were not justified in the Class 4 proceedings because Mrs Poole admitted the relevant breaches, raised matters relevant to the Court's discretion, there was no conduct of the proceedings warranting indemnity costs, and the Glasers' choice to commence Class 4 proceedings was neutral because the issues could also have been dealt with in the Class 1 appeal...

Jurisdiction
Australia
Judgment Date
12 November 2010
Procedural Posture
Class 3 Proceedings Under the Encroachment of Buildings Act 1922 and Class 4 Proceedings Concerning Unauthorised Development / Post Judgment Costs Determination on Whether Costs Should Be Awarded on an Indemnity Basis
Outcome
Indemnity costs awarded to the Glasers in the Class 3 proceedings; party/party costs awarded to the Glasers in the Class 4 proceedings; each party to bear its own costs of the indemnity costs hearing.
Legal Topics
['indemnity Costs' 'party/party Costs' 'encroachment' 'unauthorised Building Work' "court's Discretion as to Costs"]
['costs' 'planning and Environment' 'property'] ['indemnity Costs' 'party/party Costs' 'encroachment' 'unauthorised Building Work' "court's Discretion as to Costs"]

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Procedural Posture

Class 3 Proceedings Under the Encroachment of Buildings Act 1922 and Class 4 Proceedings Concerning Unauthorised Development / Post Judgment Costs Determination on Whether Costs Should Be Awarded on an Indemnity Basis

Legal Issues

  1. 1 ["Whether Mrs Poole should pay the Glasers' costs of the Class 3 proceedings on an indemnity basis." "Whether Mrs Poole should pay the Glasers' costs of the Class 4 proceedings on an indemnity basis." 'Whether the conduct of Mr or Mrs Poole and the commencement or continuation of the proceedings justified departure from the ordinary party/party costs basis.']

Ratio Decidendi

The justice of the circumstances justified indemnity costs in the Class 3 proceedings because Mr Poole's very careless construction of the unauthorised encroaching structure caused the Glasers to be joined in proceedings through no fault of their own and had substantial impacts on their amenity and potentially their safety. Indemnity costs were not justified in the Class 4 proceedings because Mrs Poole admitted the relevant breaches, raised matters relevant to the Court's discretion, there was no conduct of the proceedings warranting indemnity costs, and the Glasers' choice to commence Class 4 proceedings was neutral because the issues could also have been dealt with in the Class 1 appeal...

Court Disposition

Indemnity costs awarded to the Glasers in the Class 3 proceedings; party/party costs awarded to the Glasers in the Class 4 proceedings; each party to bear its own costs of the indemnity costs hearing.

Orders

  • ["In matter no 30948 of 2009, the Applicant Mrs Poole must pay the Respondents Mr and Mrs Glasers' costs on an indemnity basis." "In matter no 40276 of 2010, the Respondent Mrs Poole must pay the Applicants Mr and Mrs Glasers' costs on a party/party basis." 'Each party must pay its own costs of the hearing on...