Wilkinson v McCabe [2009] NSWDC 6

New South Wales District Court

CITATION: Wilkinson v McCabe [2009] NSWDC 6

HEARING DATE(S): 24-25 November 2008

JUDGMENT DATE: 3 February 2009

JURISDICTION: Civil

JUDGMENT OF: Sidis DCJ

1 The plaintiff is to pay the defendants' costs occasioned by reason of the adjournments of the proceedings granted on 5 November 2007 and 29 April 2008. 2 The defendants are to pay the plaintiff's costs of the proceedings up to and including 30 August 2007 and those incurred after 20 October 2008, with the exception of those costs referred to in paragraphs 44, 45 and 47 and the costs dealt with by order of Naughton DCJ on 8 March 2005. DECISION: 3 The proceedings are otherwise dismissed. 4 The exhibits are returned. 5 Reasons are published.

CATCHWORDS: COSTS - appropriate orders when substantive proceedings not pursued - whether defendants acted unreasonably in responding to claim of nuisance causing water penetration

Australian Securities Commission v Aust-Home Investments Ltd (1993) 44 FCR 194 CASES CITED: Re the Minister for Immigration and Ethnic Affairs of the Commonwealth of Australia; ex parte Lai Quin (1997) 186 CLR 622 Sedleigh-Denfield v O'Callaghan [1940] AC 880

PARTIES: Richard Wilkinson by his tutor James Wilkinson - Plaintiff Damon McCabe and Gabrielle McCabe - Defendants

FILE NUMBER(S): Newcastle 142/04

COUNSEL: A Leopold SC - S Chrysanthou (Plaintiff) D Murr SC - P R Cummings (Defendants)

SOLICITORS: O'Sullivan Saddington (Plaintiff) Sparke Helmore Lawyers (Defendants)

JUDGMENT

1 On 24 March 2004 Mr Richard Wilkinson commenced proceedings against Damon and Gabrielle McCabe claiming nuisance and damage from water penetration to his property at 28 The Terrace, The Hill. He claimed that the water entered his property from the property immediately to the south at 30 The Terrace, owned by the defendants.