Harrison v Owen [2011] NSWLEC 143

Harrison v Owen [2011] NSWLEC 143

The just result was that each party pay its own costs of the whole proceedings, including the costs hearing, because there was no evidence that the applicant made any real effort to resolve the encroachment dispute without separate proceedings, the respondent had advanced a separate proposition capable of resolving the dispute about 12 months before filing, and although the applicant was entitled to commence proceedings and reasonably did not press the ground floor wall claim at the hearing, the overall circumstances did not justify a costs order in either party's favour.

Jurisdiction
Australia
Judgment Date
23 August 2011
Procedural Posture
Class 3 Encroachment Proceedings / Costs Determination After Substantive Dispute Resolved by Consent Orders at Commencement of Hearing
Outcome
Each party is to pay his own costs.
Legal Topics
['encroachment of Buildings' 'consent Orders' 'costs After Settlement' 'offers of Settlement' 'party Party Costs']
['costs' 'property Law' 'land and Environment Court Procedure'] ['encroachment of Buildings' 'consent Orders' 'costs After Settlement' 'offers of Settlement' 'party Party Costs']

Case Brief

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Procedural Posture

Class 3 Encroachment Proceedings / Costs Determination After Substantive Dispute Resolved by Consent Orders at Commencement of Hearing

Legal Issues

  1. 1 ['What costs order should be made where the substantive encroachment proceedings were resolved by consent orders at the commencement of the hearing.' "Whether the applicant's success in obtaining removal of the encroachment justified an order that the respondent pay his costs." "Whether the parties' conduct before and during the proceedings justified no order as to costs or an order against the applicant from 8 July 2011."]

Ratio Decidendi

The just result was that each party pay its own costs of the whole proceedings, including the costs hearing, because there was no evidence that the applicant made any real effort to resolve the encroachment dispute without separate proceedings, the respondent had advanced a separate proposition capable of resolving the dispute about 12 months before filing, and although the applicant was entitled to commence proceedings and reasonably did not press the ground floor wall claim at the hearing, the overall circumstances did not justify a costs order in either party's favour.

Court Disposition

Each party is to pay his own costs.

Orders

  • ['Each party pay its own costs of the whole of the proceedings, including the hearing on costs.' 'Exhibits 01 and H1 may be returned to the parties.']