Sharp v Swadling [2003] NSWLEC 432

Sharp v Swadling [2003] NSWLEC 432

The respondents' removal of encroachments prior to hearing rendered the proceedings nugatory; this was unreasonable conduct given litigation had advanced, thus applicant is entitled to compensatory costs.

Parties
Applicant: Robyn Sharp; Respondents: Shand and Franca Swadling
Jurisdiction
Australia
Judgment Date
21 August 2003
Procedural Posture
Class 3 Proceedings Under Encroachment of Buildings Act / Costs Determination After Removal of Encroachments Prior to Final Hearing
Outcome
Costs awarded to applicant
Legal Topics
Encroachment of Buildings, Costs Discretion, Reasonableness of Conduct
Property Law Civil Procedure Encroachment of Buildings Costs Discretion Reasonableness of Conduct

Case Brief

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Parties

Robyn Sharp

Applicant

Shand and Franca Swadling

Respondents

Procedural Posture

Class 3 Proceedings Under Encroachment of Buildings Act / Costs Determination After Removal of Encroachments Prior to Final Hearing

Legal Issues

  1. 1 Who should bear the costs when encroachments were removed prior to determination under Encroachment of Buildings Act
  2. 2 Whether conduct of parties was reasonable in context of litigation
  3. 3 Applicability of s 14 Encroachment of Buildings Act and s 69 Land and Environment Court Act for costs

Ratio Decidendi

The respondents' removal of encroachments prior to hearing rendered the proceedings nugatory; this was unreasonable conduct given litigation had advanced, thus applicant is entitled to compensatory costs.

Court Disposition

Costs awarded to applicant

Orders

  • The Respondents must pay the Applicant's costs of these proceedings.
  • The exhibits be returned.