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. In regard to the dividing Fences Act orders, simply from a reading of his Honour's reasons it appears although in the end that Mr and Mrs Waugh had much greater success in the overall proceedings before the judge than Ms Mitchell, nevertheless she obtained orders which she sought, although she may not have got everything she sought, under the Dividing Fences Act. That is the first aspect of the case that I mentioned earlier, namely, that it cannot be said in an absolute sense that Ms Mitchell failed on all issues that were before the Court. 2 UNREPORTED JUDGMENTS The other matter where I think the claimants Mr and Mrs Waugh failed is that they have failed to persuade this court that something has happened in the court below of so serious a nature in relation to an exercise of discretion in regard to costs having gone wrong as to induce this court to grant leave. Perhaps because of the desire to save costs, by not putting fuller evidence before the court, or perhaps for other reasons, there is no material before the court from which the court can be satisfied of precisely what it was that happened before Bannon J in the course of events in relation to the Dividing Fences Act issues. It is at least possible on what we have been told there was a contest before Bannon J about whether he could or should decide the Dividing Fences Act matters and make orders under that Act, these being resisted by Mr and Mrs Waugh on the ground of the court's lack of jurisdiction. It is not possible for the court to arrive at any safe basis of what actually happened at the hearing in order to test the assertion that the judge's discretion miscarried. It also appears at least possible on the material that has been put to the court that it was only after a suggestion by the trial judge in the course of a view of the dividing line between the parties' properties that Mr and Mrs Waugh's representatives then were able to inform the court that they agreed to the judge exercising jurisdiction under the Dividing Fences Act. A further matter going to whether or not this court should grant leave to appeal against the judge's exercise of discretion is that it would be material to his exercise of discretion for him to have in mind the entirety of what happened in the course of the case, including what happened at the view. One thing is clear, the trial judge was in possession of all the facts concerning these matters and this court is not. It is quite possible on the material before the court that his Honour's exercise of discretion was a completely proper one. There is certainly no material justifying the court in assuming in the absence of more particular details of what happened in the course of the hearing and the view, that his Honour had any wrong principle in mind when he announced his decision about costs. In short the case is one where the court is of the view that it should not grant leave to appeal and the application is dismissed with costs.