WAUGH AND ANOR v MITCHELL [1994] NSWCA 340

WAUGH v MITCHELL SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY, CLARKE and MEAGHER JJA 21 February 1994

[1994] NSWCA 340

Priestley JA This is an application for leave to appeal against cost orders made by Bannon J at the conclusion of his decision in a case before him between parties who live next door to one another, one of whom had brought to the Land and Environment court a claim under the Encroachment of Buildings Act. His Honour dealt with that claim, and also dealt with some other matters in dispute between the parties under the dividing Fences Act.

The costs order he made was that in the circumstances of the case he would make no order as to costs, ie he left it to the parties themselves to bear their own costs.

The parties who were the respondents before him have sought leave to appeal to this court against that order. Their case is a simple one; they say that they substantially succeeded in the proceedings before Bannon J and that the ordinary tule that costs follow the event should have applied.

However, there are difficulties in the way of granting leave to appeal. The first is that there are many years of authorities in which this court has said that it will not grant leave to appeal simply to allow a costs order to be re-argued unless there is some matter of principle involved in what the trial judge did in making his order concerning costs which requires the Court of Appeal to intervene.

If the applicants for leave today had been able to make out their primary case, which I have earlier outlined, there might have been some prospect of leave being granted. However, it does not seem to the court that the primary case has been made out. There are two reasons for this: the first is that it is apparent that there were a number of issues decided by Bannon J and at least two were decided in favour of the applicant before him, Ms Mitchell. One of those related to whether or not there was in fact an encroachment upon her land. The other related to applications she made to have the Land and Environment Court deal with questions she raised under the dividing Fences Act. At least on those two matters it cannot be said that Ms Mitchell entirely failed. She had some success. Against this counsel for the other parties, Mr and Mrs Waugh, pointed out that the judge said that the encroachment was a trivial one. That, however, is the reason why he refused to make the order under the Encroachment of Building Act and related to a significant issue in that particular aspect of the case. That does not mean that Ms Mitchell failed entirely.