Jukes v Larter (No 2) [2013] NSWSC 103

Jukes v Larter (No 2) [2013] NSWSC 103

The plaintiffs reasonably and necessarily sought interlocutory relief because the first defendant was likely to continue excavation before constructing the retaining wall despite expert opinions that further excavation should not proceed until the existing excavation was supported. The interlocutory orders resolved the dispute by requiring the retaining wall before further excavation, so the plaintiffs were entitled to ordinary costs of obtaining that relief and of the later hearing, but indemnity costs were not warranted because the defendants complied with the orders once made. Compensation under the undertaking as to damages was refused because the orders were necessary due to the...

Jurisdiction
Australia
Judgment Date
25 February 2013
Procedural Posture
Common Law Proceedings Concerning Interlocutory Injunction, Costs, Compensation and Estoppel / Determination After Interlocutory Injunction and Resolution Before Full Hearing; Summons Dismissed
Outcome
The summons was dismissed, the defendants' application for compensation was refused, costs were awarded to the plaintiffs on the ordinary basis, and the defendants' requested estoppel was declined.
Legal Topics
['interlocutory Injunction' 'costs of Interlocutory Proceedings' 'undertaking as to Damages' 'support for Land' 'dismissal of Summons' 'estoppel in Future Proceedings']
['civil Procedure' 'costs' 'property Law' 'negligence'] ['interlocutory Injunction' 'costs of Interlocutory Proceedings' 'undertaking as to Damages' 'support for Land' 'dismissal of Summons' 'estoppel in Future Proceedings']

Case Brief

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Procedural Posture

Common Law Proceedings Concerning Interlocutory Injunction, Costs, Compensation and Estoppel / Determination After Interlocutory Injunction and Resolution Before Full Hearing; Summons Dismissed

Legal Issues

  1. 1 ['Whether the summons should be dismissed after the interlocutory dispute was resolved' 'Who should pay the costs of the proceedings and on what basis' 'Whether the defendants were entitled to compensation under the undertaking as to damages' 'Whether dismissal of the summons should create an estoppel in relation to future proceedings']

Ratio Decidendi

The plaintiffs reasonably and necessarily sought interlocutory relief because the first defendant was likely to continue excavation before constructing the retaining wall despite expert opinions that further excavation should not proceed until the existing excavation was supported. The interlocutory orders resolved the dispute by requiring the retaining wall before further excavation, so the plaintiffs were entitled to ordinary costs of obtaining that relief and of the later hearing, but indemnity costs were not warranted because the defendants complied with the orders once made. Compensation under the undertaking as to damages was refused because the orders were necessary due to the...

Court Disposition

The summons was dismissed, the defendants' application for compensation was refused, costs were awarded to the plaintiffs on the ordinary basis, and the defendants' requested estoppel was declined.

Orders

  • ['The summons filed 25 March 2012 is dismissed.' 'The application by the defendants for compensation is refused.' "The defendants are to pay the plaintiffs' costs up to and including the granting of the interlocutory injunction before Beech-Jones J on 10 April 2012 and the hearing on 12 December 2012 on an ordinary...