Gabriel v Billett (No 2) [2023] NSWLEC 123

Gabriel v Billett (No 2) [2023] NSWLEC 123

Although Ms Billett was the successful party and costs would ordinarily follow the event, s 14 required consideration of all circumstances. Neither party's offer of compromise warranted significant weight: Ms Billett's offer involved only a modest concession and required Mr Gabriel to give up much of his claim, so rejection was not unreasonable, while Mr Gabriel's offer sought transfer of an undefined parcel for a minimal sum without proper valuation, so Ms Billett's refusal was not unreasonable. Mr Gabriel's conduct, including delays and difficulties as a self-represented litigant, did not amount to relevant delinquency justifying indemnity costs; his claim was not demonstrably hopeless....

Jurisdiction
Australia
Judgment Date
15 November 2023
Procedural Posture
Class 3 Costs Application Under the Encroachment of Buildings Act 1922 (nsw) / On the Papers After Substantive Proceedings Were Finalised and Costs Reserved
Outcome
Mr Gabriel ordered to pay 50 per cent of Ms Billett's costs of the proceedings on a party and party basis; no indemnity costs; each party to bear their own costs of the application for costs.
Legal Topics
['discretion as to Costs Under S 14 of the Encroachment of Buildings Act 1922 (nsw)' 'costs Following the Event' 'offers of Compromise' 'indemnity Costs' 'impecuniosity' 'self Represented Litigant']
['costs' 'land and Environment Court' 'encroachment'] ['discretion as to Costs Under S 14 of the Encroachment of Buildings Act 1922 (nsw)' 'costs Following the Event' 'offers of Compromise' 'indemnity Costs' 'impecuniosity' 'self Represented Litigant']

Case Brief

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Procedural Posture

Class 3 Costs Application Under the Encroachment of Buildings Act 1922 (nsw) / On the Papers After Substantive Proceedings Were Finalised and Costs Reserved

Legal Issues

  1. 1 ["Whether the successful respondent should receive costs after the applicant's Class 3 encroachment application was dismissed and removal of the encroachment ordered." 'Whether offers of compromise made by the parties should affect the costs order under s 14 of the Encroachment of Buildings Act 1922 (NSW).' "Whether the applicant's conduct justified an indemnity costs order." "Whether the applicant's self-representation and asserted strained financial circumstances justified no costs order."]

Ratio Decidendi

Although Ms Billett was the successful party and costs would ordinarily follow the event, s 14 required consideration of all circumstances. Neither party's offer of compromise warranted significant weight: Ms Billett's offer involved only a modest concession and required Mr Gabriel to give up much of his claim, so rejection was not unreasonable, while Mr Gabriel's offer sought transfer of an undefined parcel for a minimal sum without proper valuation, so Ms Billett's refusal was not unreasonable. Mr Gabriel's conduct, including delays and difficulties as a self-represented litigant, did not amount to relevant delinquency justifying indemnity costs; his claim was not demonstrably hopeless....

Court Disposition

Mr Gabriel ordered to pay 50 per cent of Ms Billett's costs of the proceedings on a party and party basis; no indemnity costs; each party to bear their own costs of the application for costs.

Orders

  • ["Eric Stephen Gabriel is to pay 50 per cent of Karen Billett's costs of the proceedings (on a party and party basis) other than the costs related to the application for costs as agreed or assessed." 'Each party is to bear their own costs of the application for costs.']