Sood v Borthwick [2022] NSWSC 901

Sood v Borthwick [2022] NSWSC 901

A fair costs order required the defendant to pay 35% of the plaintiff's costs because the defendant acted unreasonably to a degree in commencing excavation without more extensive precautions and the plaintiff was likely to succeed once Mr McFall's report established trespass, but the plaintiff's case was not initially pleaded or evidenced clearly and her solicitors' miscommunication caused unreasonable delay and expense. The Calderbank offer did not affect costs because it was made too late, was open for only a little more than 24 hours, and came when relevant costs had already been incurred or committed.

Jurisdiction
Australia
Judgment Date
06 July 2022
Procedural Posture
Costs Determination After Proceedings for Trespass, Injunction and Damage to Property / Decision on Papers After Parties Agreed Final Substantive Relief But Not Costs
Outcome
Defendant ordered to pay 35% of the plaintiff's costs; court expert costs adjusted 35:65; plaintiff's solicitors ordered to pay defendant's wasted costs; directions made for any residual damages or dismissal of the remaining claim.
Legal Topics
['costs After Proceedings Settled' 'trespass to Land' 'boundary Excavation' 'court Appointed Expert Costs' 'calderbank Offer' 'solicitor Caused Wasted Costs']
['costs' 'property Law' 'civil Procedure'] ['costs After Proceedings Settled' 'trespass to Land' 'boundary Excavation' 'court Appointed Expert Costs' 'calderbank Offer' 'solicitor Caused Wasted Costs']

Case Brief

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Procedural Posture

Costs Determination After Proceedings for Trespass, Injunction and Damage to Property / Decision on Papers After Parties Agreed Final Substantive Relief But Not Costs

Legal Issues

  1. 1 ['What costs order should be made where the parties agreed final relief but did not agree costs.' 'Whether the plaintiff was almost certain to have succeeded had the proceedings been tried.' 'Whether either party acted unreasonably in commencing, defending or conducting the proceedings.' 'Whether the Calderbank offer affected the costs outcome.' "How the costs of the court appointed surveyor and costs thrown away by the plaintiff's solicitors' miscommunication should be borne."]

Ratio Decidendi

A fair costs order required the defendant to pay 35% of the plaintiff's costs because the defendant acted unreasonably to a degree in commencing excavation without more extensive precautions and the plaintiff was likely to succeed once Mr McFall's report established trespass, but the plaintiff's case was not initially pleaded or evidenced clearly and her solicitors' miscommunication caused unreasonable delay and expense. The Calderbank offer did not affect costs because it was made too late, was open for only a little more than 24 hours, and came when relevant costs had already been incurred or committed.

Court Disposition

Defendant ordered to pay 35% of the plaintiff's costs; court expert costs adjusted 35:65; plaintiff's solicitors ordered to pay defendant's wasted costs; directions made for any residual damages or dismissal of the remaining claim.

Orders

  • ["Order the defendant to pay 35% of the plaintiff's costs of these proceedings." 'Direct that within 14 days, by 19 July 2022, the plaintiff must indicate in writing to the defendant and to the Court with precision any damages or other relief that she continues to seek in these proceedings.' 'If the plaintiff...