Finch v Huang [2023] NSWCATAP 182

Finch v Huang [2023] NSWCATAP 182

The Appellant's conduct after the part-heard appeal, including obtaining an adjournment for a foreshadowed recusal application, then withdrawing both the recusal application and the substantive appeal in ambiguous terms and failing to respond to the Respondent's request for clarification, unnecessarily disadvantaged the Respondent and amounted to capitulation. Those circumstances were out of the ordinary and constituted special circumstances warranting an order for the Respondent's appeal costs on the ordinary basis. Indemnity costs were refused because no clear or properly particularised basis was provided. The Appellant was also required to pay $802.10 for the temporary fence because...

Jurisdiction
Australia
Judgment Date
06 July 2023
Procedural Posture
Appeal Concerning Orders Under the Dividing Fences Act 1991 (nsw) / Costs Determination on the Papers After Withdrawal and Dismissal of the Appeal
Outcome
The Respondent's costs application was allowed in part: ordinary costs were awarded and the temporary fence costs were ordered to be paid, but indemnity costs were refused.
Legal Topics
['costs of Appeal' 'special Circumstances' 'withdrawal of Appeal' 'stay on Conditions' 'temporary Fence Costs' 'dividing Fences']
['civil Procedure' 'costs' 'property Law'] ['costs of Appeal' 'special Circumstances' 'withdrawal of Appeal' 'stay on Conditions' 'temporary Fence Costs' 'dividing Fences']

Case Brief

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Procedural Posture

Appeal Concerning Orders Under the Dividing Fences Act 1991 (nsw) / Costs Determination on the Papers After Withdrawal and Dismissal of the Appeal

Legal Issues

  1. 1 ["Whether special circumstances warranted an order that the Appellant pay the Respondent's costs of the appeal after the Appellant withdrew the appeal and it was dismissed under s 55(1)(a) of the Civil & Administrative Tribunal Act 2013 (NSW)." 'Whether the Respondent should receive costs on an indemnity basis or only on the ordinary basis.' 'Whether the Appellant should pay $802.10 for the costs incurred by the Respondent in erecting and maintaining the temporary fence.']

Ratio Decidendi

The Appellant's conduct after the part-heard appeal, including obtaining an adjournment for a foreshadowed recusal application, then withdrawing both the recusal application and the substantive appeal in ambiguous terms and failing to respond to the Respondent's request for clarification, unnecessarily disadvantaged the Respondent and amounted to capitulation. Those circumstances were out of the ordinary and constituted special circumstances warranting an order for the Respondent's appeal costs on the ordinary basis. Indemnity costs were refused because no clear or properly particularised basis was provided. The Appellant was also required to pay $802.10 for the temporary fence because...

Court Disposition

The Respondent's costs application was allowed in part: ordinary costs were awarded and the temporary fence costs were ordered to be paid, but indemnity costs were refused.

Orders

  • ["The Appellant is to pay the Respondent's costs of the appeal on the ordinary basis from 28 October 2022 in an amount agreed between the parties or, if not agreed, as assessed." 'The Appellant is to pay the Respondent the sum of $802.10 within 14 days of the date of these orders.']