Cicek v Department of Customer Service (No 2) [2020] NSWLEC 97

Land and Environment Court New South Wales

Medium Neutral Citation: Cicek v Department of Customer Service (No 2) [2020] NSWLEC 97 Hearing dates: 10 July 2020 Date of orders: 10 July 2020 Decision date: 10 July 2020 Jurisdiction: Class 3 Before: Robson J Decision: See orders at [8] Catchwords: COSTS — General rule that costs follow the event — Successful party seeking limited costs against self-represented litigant Legislation Cited: Land and Environment Court Rules 2007 (NSW) r 3.7 Real Property Act 1900 (NSW) Pt 14A, s 135J Uniform Civil Procedure Rules 2005 (NSW) r 42.1 Cases Cited: Cicek v Department of Customer Service [2020] NSWLEC 83 Category: Costs Parties: Febionia Cicek (Applicant) Department of Customer Service (formerly the Department of Finance, Services and Innovation) (First Respondent) Donald Jeffery Nash (Second Respondent) Julie Maree Grimish (Third Respondent) Representation: Counsel: F Cicek, self-represented (Applicant) L A Walsh (First Respondent) D J Nash, self-represented (Second and Third Respondents)

Solicitors: Self-represented (Applicant) Office of the Registrar General, Department of Customer Service (First Respondent) Self-represented (Second and Third Respondents) File Number(s): 2019/00002600 Publication restriction: Nil

EX TEMPORE Judgment – COSTS 1. HIS HONOUR: On 2 July 2020 I dismissed an appeal brought by Febionia Cicek ('applicant') pursuant to s 135J of the Real Property Act 1900 (NSW) against the Department of Customer Service ('Department'), formerly known as the Department of Finance, Services and Innovation, in relation to a boundary determination and reserved the question of costs: Cicek v Department of Customer Service [2020] NSWLEC 83. 2. In written submissions at the hearing, the Department indicated that it would seek its costs if it was successful in the appeal. 3. In relation to a possible order that the applicant pay the costs of the proceedings, in written submissions the applicant submitted that she has been disadvantaged because the boundary determination which she was appealing against was both unfair and unreasonable. The applicant also submits that her position had been made more difficult as she has not had legal representation since approximately halfway through the preparation of the matter for hearing and, further, that she has suffered both emotional and financial stress. 4. In response to my inquiry made to the Department when I delivered judgment on 2 July 2020 as to whether costs were to be sought, on 7 July 2020 I received communication from the Office of Registrar General, a division within the Department (Exhibit 2) which stated that the Department now only "seeks a very small contribution toward its costs in the sum of $3,040, which comprises Counsel's fees for preparation and an appearance on 9 May 2019 at the hearing of the applicant's [earlier] notice of motion before Pain J." That motion, filed 22 March 2019, was apparently brought by the applicant seeking leave to amend her application to also appeal against another boundary determination which she believed may have affected the determination of the position of her boundary. I take that correspondence into account in considering the Department's position. 5. The applicant indicates to me today that she genuinely believed that there was an error in the determination of the boundary and further indicates the somewhat difficult circumstances in which both she and her husband are now placed. 6. Although r 3.7 of the Land and Environment Court Rules 2007 (NSW) applies to some appeals brought within Class 3 of the Court's jurisdiction, appeals against boundary determinations under Pt 14A of the Real Property Act 1900 (NSW) are not caught within r 3.7(1)(c) and, as such, the proceedings should follow the general rule which is that costs follow the event: Uniform Civil Procedure Rules 2005 (NSW) r 42.1. 7. I consider that the Department, being the successful party, is entitled to its costs of the proceedings which, apart from other earlier interlocutory hearings and mentions, occupied two days of hearing on 9 and 10 March 2020. However, as I note that the Department only seeks the sum of $3,040 in accordance with Exhibit 2 referred to above in respect of the hearing of the motion on 9 May 2019, I consider it appropriate that costs be ordered in that amount.