Smith v Kaddour (No 2) [2018] NSWLEC 21

Smith v Kaddour (No 2) [2018] NSWLEC 21

It is appropriate that the applicants pay half the respondents' costs of the dismissal hearing and half the respondents' costs of the costs application, because while part of the application was brought outside the Court's jurisdiction and thus dismissal was sought, issue estoppel was not identified until after commencement and the applicants' actions were reasonable from a lay perspective. Indemnity costs are not warranted as there was no improper purpose or special feature.

Parties
First Applicant: David James Smith; Second Applicant: Lesley Sharon Hannaford; First Respondent: Kareem Kaddour; Second Respondent: Matin Kaddour
Jurisdiction
Australia
Judgment Date
07 March 2018
Procedural Posture
Costs Application (following Dismissal of Originating Application) / Post Dismissal (costs Determination)
Outcome
Applicants to pay half the Respondents' costs of the dismissal hearing and half the Respondents' costs of the costs application.
Legal Topics
Trees (disputes Between Neighbours) Act 2006, Jurisdiction, Issue Estoppel, Indemnity Costs, Conduct of Proceedings
Costs Environmental Law Trees (disputes Between Neighbours) Act 2006 Jurisdiction Issue Estoppel Indemnity Costs Conduct of Proceedings

Case Brief

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Parties

David James Smith

First Applicant

Lesley Sharon Hannaford

Second Applicant

Kareem Kaddour

First Respondent

Matin Kaddour

Second Respondent

Procedural Posture

Costs Application (following Dismissal of Originating Application) / Post Dismissal (costs Determination)

Legal Issues

  1. 1 Whether it is fair and reasonable to award costs to successful respondents following dismissal of application under the Trees (Disputes Between Neighbours) Act 2006 due to absence of jurisdiction and issue estoppel
  2. 2 Whether indemnity costs are appropriate
  3. 3 Whether applicants acted unreasonably or for an improper purpose

Ratio Decidendi

It is appropriate that the applicants pay half the respondents' costs of the dismissal hearing and half the respondents' costs of the costs application, because while part of the application was brought outside the Court's jurisdiction and thus dismissal was sought, issue estoppel was not identified until after commencement and the applicants' actions were reasonable from a lay perspective. Indemnity costs are not warranted as there was no improper purpose or special feature.

Court Disposition

Applicants to pay half the Respondents' costs of the dismissal hearing and half the Respondents' costs of the costs application.

Orders

  • The Applicants are to pay half the Respondents' costs of the dismissal hearing.
  • The Applicants are to pay half the Respondents' costs of the costs application.