> Land and Environment Court of New South Wales CITATION : Goncalves & Anor v Tsirakidis & Anor [2003] NSWLEC 426 APPLICANTS: Joao Manuel Goncalves and Arminda De Jesus Costa Carneiro Goncalves PARTIES : RESPONDENTS: Alkis Tsirakidis and Simela Tsirakidis FILE NUMBER(S) : 30969 of 2003 CORAM: Lloyd J KEY ISSUES: Costs :- in Class 3 - encroachment of building - resolved without hearing - delay in removal of encroachment - respondents to pay applicants' costs including cost of surveyor's report LEGISLATION CITED: Encroachment of Buildings Act 1922 s 14 Droga & Ors v Proprietors of Strata Plan 51722, NSWLEC, Bignold J, 28 November 1997, unreported; CASES CITED: Hofer v Howell Developments Pty Ltd (No. 2) (2001) 113 LGERA 392; Re The Minister for Immigration and Ethnic Affairs of the Commonwealth of Australia; Ex Parte Lai Qin (1997) 186 CLR 622 DATES OF HEARING: 15/12/2003 EX TEMPORE JUDGMENT DATE : 12/15/2003 APPLICANTS: Mr J A Waters (barrister) SOLICITORS: Newtown Solicitors LEGAL REPRESENTATIVES: RESPONDENTS: Mr A P Joseph (barrister) SOLICITORS: N/A JUDGMENT: - 4 - IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES 30969 of 2003 Lloyd J 15 December 2003 JOAO MANUEL GONCALVES AND ARMINDA DE JESUS COSTA CARNEIRO GONCALVES Applicants v ALKIS TSIRAKIDIS AND SIMELA TSIRAKIDIS Respondents EX TEMPORE JUDGMENT 1 In these proceedings, the applicants sought relief under the Encroachment of Buildings Act 1922 for the removal of an encroachment upon the applicants' land, known as No. 101 Frazer Street, Marrickville. The encroaching building was a carport erected on the adjoining land, owned by the respondents, at No. 99 Frazer Street, Marrickville, which encroached across the property boundary onto the applicants' land. 2 Since the commencement of the proceedings, the encroachment has been removed. The only outstanding question, therefore, is that of costs, including the costs of a survey. 3 Section 14 of the Encroachment of Buildings Act provides: In any application under this Act, the court may make such order as to the payment of costs, charges and expenses as it may deem just in the circumstances and may take into consideration any offer of settlement made by either party. 4 It has been held in this Court that, in the application of s 14 of the Encroachment of Buildings Act, the Court will apply the settled principles relating to the discretion to make orders for costs. (See Droga & Ors v Proprietors of Strata Plan 51722, NSWLEC, Bignold J, 28 November 1997, unreported and Hofer v Howell Developments Pty Ltd (No 2) (2001) 113 LGERA 391.) 5 The principles to be applied where proceedings have been resolved without a hearing on the merits are explained by McHugh J in Re The Minister for Immigration and Ethnic Affairs of the Commonwealth of Australia; Ex parte Lai Qin (1997) 186 CLR 622 at 624: In most jurisdictions today, the power to order costs is a discretionary power. Ordinarily, the power is exercised after a hearing on the merits and, as a general rule, the successful party is entitled to his or her costs [Latoudis v Casey (1990) 170 CLR 534 ] . Success in the action or on particular issues is the fact that usually controls the exercise of the discretion. A successful is, prime facie, entitled to a costs order [Latoudis (1990) 170 CLR 534 at 543, 566-568 ] . When there has been no hearing on the merits, however, a court is necessarily deprived of the factor that usually determines whether or how it will make a costs order. 6 His Honour went on to say at 625: Moreover, in some cases a judge may feel confident that although both parties have acted reasonably, one party was almost certain to have succeeded if the matter had been fully tried. 7 In the present case, the encroaching building was erected, it seems, in about December 1984, apparently with the consent of the applicants. On 23 April 2003, the applicants' solicitor, however, wrote to the respondents, the owners of number No. 99 Frazer Street, requiring the removal of the encroachment within fourteen days. It follows that on and from 23 April 2003 the consent for the building to encroach upon the applicants' land was withdrawn. 8 On 23 April 2003 Mr Aris Tsirakidis, the son of the respondents, who was apparently living at number No. 99 Frazer Street, Marrickville, telephoned the applicants' solicitor saying that he needed six weeks to remove the encroachment. On 22 July 2003, long after the expiry of the six-week period nominated by Mr Aris Tsirakidis, the applicants' solicitor again wrote to the respondent stating: "Unless the structure is removed within seven days we shall file the summons." 9 On 18 August 2003 the present application was filed in the court and was served on 23 August 2003. 10 On 10 September 2003 the applicants' solicitor wrote to the respondents stating that they proposed to instruct a surveyor. On 12 September 2003 Mr Aris Tsirakidis wrote to the applicants' solicitor advising that the encroachment would be removed by 15 September 2003. I understand that the bulk of the encroachment was, in fact, removed by 15 September 2003. On 23 September 2003 Mr Aris Tsirakidis wrote to the applicants' solicitors, stating that the encroachment had been removed. A survey report dated 17 October 2003 is in evidence and it shows that part of the encroachment still remained, namely an encroachment of the metal roofing of the carport extending out from the posts and overhanging the applicants' property by 0.055 metres. 11 In these circumstances the applicants seek their costs. 12 It is submitted that a number of reasons exist to deny the applicants their costs. Firstly, it is said that no part of the proceeding has been determined in the applicants' favour. As to that, I must say that the Court can, as observed by McHugh J, in Lai Qin, feel confident that although both parties may have acted reasonably, one party was almost certain to have succeeded if the matter had been fully litigated; and in this case that is the applicants. 13 Secondly, it is submitted that the respondents have acted reasonably, particularly in the light of the son of the respondents having had considerable health problems involving periods of admission to hospital. It is clear, however, that the respondents were asked to remove the encroachment on 23 April 2003. They were again reminded on 22 July 2003 to remove it and unless they did so an application would be filed. Subsequently the present application was filed. The encroachment was then not removed until some two months later. 14 Finally, it is submitted that there was no need for the applicants to incur the costs of the survey. I do not agree. The survey that was carried out on 17 October 2003 shows that part of the encroachment still remained. The applicants were fully justified in incurring the cost of engaging a surveyor. 15 It follows that there will be an order that the respondents pay the applicants' costs, those costs to include the costs of obtaining the surveyor's report. I hereby certify that the preceding 15 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice Lloyd Associate 15 December 2003 ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.