Sun v Pager [2023] NSWSC 732

Supreme Court New South Wales

Medium Neutral Citation: Sun v Pager [2023] NSWSC 732 Hearing dates: 27 June 2023 Date of orders: 27 June 2023 Decision date: 27 June 2023 Jurisdiction: Equity - Technology and Construction List Before: Stevenson J Decision: Plaintiff to pay costs of motion for interlocutory mandatory injunction on indemnity basis from 2 June 2023; costs to be assessed as gross sum and be payable forthwith Catchwords: CIVIL PROCEDURE – costs – interlocutory application for mandatory injunction – where relief sought tantamount to final relief – application not pressed – whether applicant should pay costs of motion – whether costs should be on indemnity basis – whether costs should be assessed as a gross sum and be payable forthwith Legislation Cited: Civil Procedure Act 2005 (NSW) Category: Procedural rulings Parties: Xia Hua Sun (Plaintiff/Applicant) Natalie Pager (Defendant/Respondent) Representation: Counsel: F F F Salama with A Smyth (Plaintiff/Applicant) D Hand (Defendant/Respondent)

Solicitors: Memcorp Lawyers Pty Ltd (Plaintiff/Applicant) Bridges Lawyers Pty Ltd (Defendant/Respondent) File Number(s): 2022/333013

EX TEMPORE JUDGMENT (REVISED) 1. The plaintiff, Ms Xia Hua Sun, and the defendant, Ms Natalie Pager, own adjoining properties in Vaucluse. I will call Ms Sun's property "number 56" and Ms Pager's property "number 58". 2. Ms Sun commenced these proceedings on 7 November 2023, seeking the following orders: An injunction to restrain the ongoing nuisance caused by water flowing through the interface on [number 58] into the interior of [number 56]. A mandatory injunction requiring the defendant to install a suitable building system to prevent water flowing from [number 58] onto the interface between [number 58] and [number 56], being the common boundary wall. 1. By Notice of Motion filed on 6 March 2023, Ms Sun sought, on an interlocutory basis, a mandatory injunction requiring Ms Pager to facilitate access to number 58, "for the purpose of [Ms Sun] arranging the installation of a suitable building system to prevent water entering the interface between," number 58 and number 56, "being the common boundary wall." 2. Thus, Ms Sun was seeking, on an interlocutory basis, relief that was, in practical terms, closely approximate to the final relief sought. 3. On 21 April 2023, Ball J listed Ms Sun's motion for hearing on 1 June 2023. 4. On 29 May 2023, Ms Sun applied for a vacation of the hearing date. On that occasion, Mr Corsaro of Senior Counsel appeared for Ms Sun and had this exchange with Ball J: CORSARO: There's a certain finality about the interim relief that we seek, and I was wondering whether perhaps a much more intelligent way forward is for your Honour to indicate an early hearing date for the substantive case [on] all issues. I think it will take two days. We can get our evidence on relatively quickly on all issues. At the moment the evidence will deal with the technical issues relating to the water penetration, why the plaintiff has moved out of her home. What we would need to do is put on quantum issues and some evidence that deals with that. We can do that relatively quickly. I think I have spoken to my friend. He agrees that that might be a way forward, in which case we don't proceed with the motion, and we ultimately accept an early hearing date if your Honour has one. Now, I'm not bargaining with your Honour but that's just another way in which the Court might deal with it. The reality is this, the quicker we can get it on, the quicker one way or another Ms Sun will be able to get back into her home and mitigate loss because at the moment, the family's living in rented accommodation and that's racking up damages, your Honour. HIS HONOUR: Yes. It would be possible to have an early hearing date in the week starting 26 June. 1. Ball J also indicated that 3 and 4 August 2023 were available for a final hearing of the matter. Mr Corsaro said "we'll take the 3rd and 4th your Honour". However, as Ms Pager's legal representative was not able to say whether that date was convenient, Ball J vacated the hearing date and listed the matter in the Friday directions list on 2 June 2023. 2. On that occasion, Ms Sun's solicitor appeared and, notwithstanding what Mr Corsaro had said a few days earlier, sought a hearing date for this motion. 3. Ms Sun's solicitor and his Honour had this exchange: HIS HONOUR: All right. What if I were to fix it for 27 June? FAHD: I'll be in the same position. I'll be in the same position. I'll have to re-engage. But that's a matter that we have to do to get it on. I don't think it's appropriate to delay it. Even if we took the course of an expedited hearing we say that it's a much quicker course to attend the mention and try to get that injunction. So I'll take any available date for the Court. HIS HONOUR: What it's going to mean is that the outcome of this application may turn on the balance of convenience rather than the merits of the case. But that's the consequence. But if that's the consequence that the plaintiff is happy to live with, well - but that is the consequence. You understand that? FAHD: We had discussions with Mr Corsaro and the client about the options and-- HIS HONOUR: All right. Anyway-- FAHD: --considering the instructions were-- HIS HONOUR: --as I say, if you're happy that the matter might turn on the balance of convenience or discretionary considerations rather than the merits of the case, I'll fix the motion for hearing on 27 June. 1. Thus, his Honour set down Ms Sun's Notice of Motion for hearing today. 2. Now, perhaps with the benefit of the advice from Mr Salama, who has been recently retained, Ms Sun does not press for interlocutory relief. 3. Mr Salama and Mr Hand, who appears for Ms Pager, have agreed a timetable to ready the matter for final hearing and have requested that the matter be placed into the directions list this coming Friday for allocation of a hearing date if that is appropriate. 4. What remains in dispute is the question of the costs of the motion. 5. Surprisingly, bearing in mind what I have set out, Ms Sun resists an order that she pay the costs of the motion at all. Mr Salama suggested that if that were not an appropriate order then an alternative might be that the costs of the motion be costs in the cause. 6. Ms Pager seeks an order that Ms Sun pay her costs of the motion, including on an indemnity basis, from 1 June 2023. I am of the opinion that is an appropriate order to make. 7. The application for interlocutory relief was ill advised in the first place, and the decision of the plaintiff, no doubt based on legal advice, to persist with an application for interlocutory relief when offered a final hearing date this week is sufficient, in my opinion, to enliven the Court's jurisdiction to order indemnity costs. 8. I also propose to make orders to ensure those costs are paid forthwith. 9. I make the following orders. I order that the plaintiff pay the defendant's costs of the plaintiff's Notice of Motion of 6 March 2023, including on an indemnity basis from 2 June 2023. I order that those costs be assessed as a gross sum under s 98(4) of the Civil Procedure Act 2005 (NSW) and be payable forthwith. I direct the solicitors for the defendant to provide my associate, by 5pm today, with an assessment of the defendant's actual costs of the motion. I order that the plaintiff pay that sum or such other sum as the Court orders within the time specified in the Court's further order. Finally, I order that if that sum is not paid by that time, so by the time specified in that order, the proceedings be stayed.