Wherry v Trustees of the Sisters of Charity of Australia [2001] NSWLEC 210

Wherry v Trustees of the Sisters of Charity of Australia [2001] NSWLEC 210

The Respondent was wholly successful in resisting the Applicant's claims for compensation and minimum compensation, and the Applicant failed to establish circumstances justifying no order as to costs. The usual costs-follow-the-event principle applied, but the Respondent's costs were to exclude costs incurred on its discrete cross-claim for removal of the Applicant's encroachment because that claim was not pressed. Indemnity costs were refused because, given the late timing of the Calderbank offer, its limited practical operation, and the legal costs already incurred by the Applicant, the Respondent had not shown that non-acceptance of the offer was unreasonable.

Jurisdiction
Australia
Judgment Date
11 September 2001
Procedural Posture
Proceedings Under the Encroachment of Buildings Act 1922 Concerning Costs / Notice of Motion Restoring the Reserved Question of Costs After Judgment on the Substantive Application and Cross Application
Outcome
The Applicant was ordered to pay the Respondent's costs on a party and party basis, excluding costs of the Respondent's cross-claim for removal of the Applicant's encroachment; indemnity costs were refused.
Legal Topics
['encroachment of Buildings' 'easement for Support' 'costs Follow the Event' 'indemnity Costs' 'calderbank Offer']
['costs' 'property Law' 'land and Environment Court Procedure'] ['encroachment of Buildings' 'easement for Support' 'costs Follow the Event' 'indemnity Costs' 'calderbank Offer']

Case Brief

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Procedural Posture

Proceedings Under the Encroachment of Buildings Act 1922 Concerning Costs / Notice of Motion Restoring the Reserved Question of Costs After Judgment on the Substantive Application and Cross Application

Legal Issues

  1. 1 ["Whether there should be no order as to costs despite the respondent's success in resisting the applicant's compensation claims" 'Whether the respondent should receive its costs on the usual party and party basis, excluding costs of its abandoned discrete cross-claim' "Whether the applicant's non-acceptance of the respondent's Calderbank offer justified indemnity costs"]

Ratio Decidendi

The Respondent was wholly successful in resisting the Applicant's claims for compensation and minimum compensation, and the Applicant failed to establish circumstances justifying no order as to costs. The usual costs-follow-the-event principle applied, but the Respondent's costs were to exclude costs incurred on its discrete cross-claim for removal of the Applicant's encroachment because that claim was not pressed. Indemnity costs were refused because, given the late timing of the Calderbank offer, its limited practical operation, and the legal costs already incurred by the Applicant, the Respondent had not shown that non-acceptance of the offer was unreasonable.

Court Disposition

The Applicant was ordered to pay the Respondent's costs on a party and party basis, excluding costs of the Respondent's cross-claim for removal of the Applicant's encroachment; indemnity costs were refused.

Orders

  • ["The Applicant shall pay the Respondent's costs of the proceedings (except for costs incurred in connection with the Respondent's cross-claim for the removal of the Applicant's encroachment upon the Respondent's land) on a party and party basis in the sum agreed, or failing agreement, as assessed."]